Dr A Chakraborty v Dr S Sukumaran and Dr S Dhall (practising in partnership as Cloister Road Surgery): 2217937/2024 and 2219962/2024
EMPLOYMENT TRIBUNALS
Case No 2217937/2024, 2219962/2024
Between
Dr A ChakrabortyClaimantDr S Sukumaran and Dr S Dhall (practising in partnership as Cloister Road Surgery)Respondent
Before
Employment Judge A M Snelson
Members
Mr J CarrollMr P de Chaumont-Date 9 October 2025
JUDGMENT
2 June, 28 August 2025 (in chambers) BEFORE: Employment Judge A M Snelson MEMBERS: Mr J Carroll Mr P de Chaumont- Rambert On hearing Mr J Boyd, counsel, on behalf of the Claimant and Mr R Katz, counsel, on behalf of the Respondent, the Tribunal determines that:(1) The Respondents are correctly identified as appears above and the claim form and title of the proceedings are amended accordingly.(2) The Claimant’s complaint of discrimination arising from disability identified in the agreed list of issues attached to the accompanying reasons, para 4.3.3, although substantiated, fails on the ground that it was presented out of time and the Tribunal has no jurisdiction to consider it.(3) The Claimant’s other complaints of discrimination arising from disability and all complaints of direct disability discrimination, failure to make reasonable adjustments, disability-related harassment and victimisation are not wellfounded.(4) Those of the Claimant’s complaints referred to in para (3) above presented outside the time limit under the Equality Act 2010, s123(1)(a) as extended under the Early Conciliation provisions (if applicable) fail on the further ground that they were presented out of time and the Tribunal has no jurisdiction to consider them.(5) The Claimant’s complaint of unfair dismissal is well-founded.(6) A private preliminary hearing for case management shall be held by CVP before an
REASONS
[1]The Respondents are GPs who, at all material times, practised in partnership in West London as Cloister Road Surgery. Where appropriate, we will refer to it as ‘the Surgery’ or ‘the Practice’.[2]The Claimant is also a GP. She was employed by the Respondents as a parttime practitioner at the Surgery from 5 May 2017 until her resignation, which took effect on 5 April 2024.[3]By her first claim form, presented on 5 April 2024, the Claimant brought a number of claims under the Equality Act 2010 (‘the 2010 Act’), many alleging disability discrimination (in various forms). In a second claim, presented on 17 May 2024, she added a complaint of unfair (constructive) dismissal.[4]By their composite grounds of resistance dated 18 June 2024, the Respondents resisted all claims on their merits and a large proportion on the further ground that they had been brought out of time.[5]At a preliminary hearing for case management before Employment Judge Connolly held on 19 July 2024 at which both parties were represented, a directions timetable was set and a final hearing fixed to commence on 24 April 2025, with seven sitting days allocated.[6]Following the hearing on 19 July 2024, EJ Connolly issued a document which noted the claims brought and the agreement of the parties that the Claimant had at all material times been disabled by the condition of Long Covid. His order included a direction for the parties to agree a list of issues. Some time thereafter, a ‘draft list of issues’ was produced.[7]The final hearing duly came before us on 24 April this year. The Claimant was represented by Mr James Boyd, counsel, and the Respondents by Mr Raphael Katz, a consultant. Both advocates had been instructed throughout and had attended the case management hearing before EJ Connolly on 19 July 2024.[8]At the start of the hearing we reviewed the ‘draft list of issues’ with the representatives. They confirmed that the document was agreed. We noted three points. First, the ‘something arising’ for the purposes of the discrimination arising from disability claim was not specified. Mr Boyd told us that the only matter relied upon was the Claimant’s sickness absence record. Second, the Respondents’ ‘justification’ defence to the same claim was also not specified. Mr Katz gave us the gist of the relevant ‘legitimate aim’ and ‘proportionate means’ orally. The representatives agreed that a perfected version of the agreed list of issues would be lodged. The third point was our preliminary doubt about the way in which the ‘draft’ document framed the provisions, criteria or practices (‘PCPs’) relied upon for the purposes of the complaint of failure to make reasonable adjustments. The Claimant having the benefit of representation by solicitors and counsel, and we being new to the case, we did not think it right to go further than to question whether the agreed document put that part of the case in a proper or sustainable way. Hence our suggestion to Mr Boyd to give further thought to the PCPs as currently formulated. He agreed to do so. The following morning, just before the evidence began, he told us that the Claimant was content with the PCPs as formulated in the ‘draft’ and proposed no change to them.[9]In the event, we were not able to complete the hearing within the time allocation. This was because the Tribunal was not in a position to field a panel all of whose members were available for each of the scheduled sitting days (a problem which seems to occur with increasing frequency). We did, however, manage to complete the evidence in the five days on which we could sit. We then considered how to deal with closing submissions. The agreed position of both advocates was that the best course was to reserve judgment and give directions for the delivery of submissions in writing and, after a short further interval, brief counter-submissions responding to the opposing party’s primary submissions. They encouraged us to take this course on the basis that it would save costs and avoid the substantial delay which would almost certainly arise if the Tribunal sought to list a further oral hearing to receive closing argument. We were mindful of the need for caution but took the view, on balance, that the course proposed to us was more in keeping with the overriding objective than any other option. Uppermost in our minds were two factors: the unanimity of the parties and the fact that both had experienced representation. Accordingly, on day five of the hearing, we reserved judgment and gave directions for the exchange of submissions and counter-submissions and the production of a statement of agreed facts.[10]By an order in writing dated 6 May 2025, we confirmed those directions and made separate provision for delivery, no later than 14 May, of a final, definitive, agreed list of issues.[11]To their credit, the advocates agreed a sensible timetable for the delivery of their submissions and the statement of agreed facts.[12]Our private deliberations occupied a full sitting day on 2 June 2025 and were completed on the morning of 28 August 2025. The Claims and Issues[13]The Claimant ultimately pursued claims under six heads: direct disability discrimination, discrimination arising from disability, failure to make reasonable adjustments, harassment related to disability, victimisation and unfair (constructive) dismissal. The Respondent resisted them all on their merits and further contended that a large proportion were presented out of time and so fell outside the Tribunal’s jurisdiction in any event.[14]The final, agreed list of issues (‘LOI’) is appended to these reasons.
Evidence
[15]The Tribunal received oral evidence from the Claimant, Dr Sidartha Sankar Dutta (her husband) and both Respondents. We also read a statement in support of the Claimant’s case written by Ms Sarah Palmer, a friend of hers.[16]In addition to witness evidence, we read the documents to which we were referred in the main bundle and supplementary bundle, which together consisted of over 1,500 pages. A handful of sundry loose documents was also handed up.[17]We also had the benefit of a useful chronology and cast list.[18]The paperwork was completed by the copious written closing submissions and counter-submissions of both advocates and the statement of agreed facts. The Legal Framework The Equality Act 2010 Direct discrimination
The Legal Framework
[19]The Equality Act 2010 (‘the 2010 Act’) protects employees and applicants for employment from discrimination and analogous torts. Chapter 2 lists a number of forms of ‘prohibited conduct’. These include direct discrimination, which is defined by s13 in (so far as material) these terms: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. ‘Protected characteristics’ include disability (s6). By s23(1) and (2)(a) it is provided that, for the purposes of (inter alia) a direct discrimination claim, there must be no material difference between the circumstances of the claimant’s case and that of his or her comparator and that (for these purposes) the ‘circumstances’ include the claimant’s and comparator’s abilities.[20]In Nagarajan v London Regional Transport [1999] IRLR 572 HL Lord Nicholls construed the phrase ‘on racial grounds’ in the Race Relations Act 1976, s1(1)(a), in these words: If racial grounds … had a significant influence on the outcome, discrimination is made out. In line with Onu v Akwiwu [2014] ICR 571 CA, we proceed on the footing that introduction of the ‘because of’ formulation (which replaced ‘on racial grounds’, ‘on grounds of disability’ etc in the pre-2010 legislation) effected no material change to the law. Discrimination arising from disability[21]Discrimination arising from disability (to use the convenient shorthand) is covered by the 2010 Act, s15, which, so far as material, provides as follows:(1) A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably be expected to know, that B had the disability.[22]In Pnaiser v NHS England [2016] IRLR 170 EAT, Simler J (as she then was), sitting in the EAT, summarised the meaning and effect of s15(1)(a) as follows (para 31): In the course of submissions I was referred by counsel to a number of authorities … From these authorities, the proper approach can be summarised as follows:(a) A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises.(b) The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. …(c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment …(d) The Tribunal must determine whether the reason/cause … is “something arising in consequence of B’s disability”. The expression ‘arising in consequence of’ could describe a range of causal links. Having regard to the legislative history … the causal link between the something that causes unfavourable treatment and the disability may include more than one link. …[23]So far as material, the 2010 Act, s20 provides:(1) Where this Act imposes a duty to make reasonable adjustments … a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. In this context, ‘substantial’ means ‘more than minor or trivial’ (s212) and a ‘relevant matter’ means employment (sch 8, para 5(1)).[24]Failure to comply with a duty to make reasonable adjustments amounts to discrimination (s21(2)). By s39(5) it is provided that a duty to make reasonable adjustments applies to an employer.[25]We remind ourselves that the higher courts have often stressed the importance of a methodical approach to the reasonable adjustments jurisdiction (see eg Environment Agency v Rowan [2008] ICR 218 EAT).[26]In our experience, it is the concept of the PCP which creates the greatest difficulty in reasonable adjustments disputes. Problems most frequently arise where the complaint is put on the basis of a particular act or form of treatment said to have been wrongfully done or applied to the complainant. This tends to misunderstand the jurisdiction, concentrating on the way in which the employer has dealt with the individual complainant’s circumstances when the focus should be on the relevant ‘across-the-board’ practice or standard and the discriminatory effect which it produces. In Ishola v Transport for London [2020] ICR 1204 CA, Simler LJ, giving the only substantial judgment in the Court of Appeal, provided this valuable guidance:[35]The words "provision, criterion or practice" are not terms of art, but are ordinary English words. I accept that they are broad and overlapping, and in light of the object of the legislation, not to be narrowly construed or unjustifiably limited in their application. I also bear in mind the statement in the Statutory Code of Practice that the phrase PCP should be construed widely. However, it is significant that Parliament chose to define claims based on reasonable adjustment and indirect discrimination by reference to these particular words, and did not use the words "act" or "decision" in addition or instead. As a matter of ordinary language, I find it difficult to see what the word "practice" adds to the words if all one-off decisions and acts necessarily qualify as PCPs, as Mr Jones submits. Mr Jones' response that practice just means "done in practice" begs the question and provides no satisfactory answer. If something is simply done once without more, it is difficult to see on what basis it can be said to be "done in practice". It is just done; and the words "in practice" add nothing.[36]The function of the PCP in a reasonable adjustment context is to identify what it is about the employer's management of the employee or its operation that causes substantial disadvantage to the disabled employee. The PCP serves a similar function in the context of indirect discrimination, where particular disadvantage is suffered by some and not others because of an employer's PCP. In both cases, the act of discrimination that must be justified is not the disadvantage which a claimant suffers (or adopting Mr Jones' approach, the effect or impact) but the practice, process, rule (or other PCP) under, by or in consequence of which the disadvantageous act is done. To test whether the PCP is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply. I accept of course (as Mr Jones submits) that the comparator can be a hypothetical comparator to whom the alleged PCP could or would apply.[37]In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments are intended to address. If an employer unfairly treats an employee by an act or decision and neither direct discrimination nor disability related discrimination is made out because the act or decision was not done/made by reason of disability or other relevant ground, it is artificial and wrong to seek to convert them by a process of abstraction into the application of a discriminatory PCP.[38]In context, and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words 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. It seems to me that "practice" here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or "practice" to have been applied to anyone else in fact. Something may be a practice or done "in practice" if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one.[39]In that sense, the one-off decision treated as a PCP in Starmer1 is readily understandable as a decision that would have been applied in future to similarly situated employees. However, in the case of a one-off decision in an individual case where there is nothing to indicate that the decision would apply in future, it seems to me the position is different. It is in that sense that Langstaff J referred to "practice" as having something of the element of repetition about it. In the Nottingham2 case in contrast to Starmer, the PCP relied on was the application of the employer's disciplinary process as applied and (no doubt wrongly) understood by a particular individual; and in particular his failure to address issues that might have exonerated the employee or give credence to mitigating factors. There was nothing to suggest the employer made a practice of holding disciplinary hearings in that unfair way. This was a one-off application of the disciplinary process to an individual's case and by inference, there was nothing to indicate that a hypothetical comparator would (in future) be treated in the same wrong and unfair way. 27 The correct formulation of the PCP is a critical requirement in any complaint of failure to make reasonable adjustments. Without it, the claim will collapse at once. As Slade J explained in Secretary of State for Justice v Prospere EAT 0412/14 (para 23): … Under section 20, the Employment Tribunal has to consider whether there has been a breach of duty by the Respondent to make reasonable adjustments. The steps which a Respondent is under a duty to take must depend on the particular PCP applied. In making the assessments … there must be certainty as to the PCP which [it] is said by a Claimant was applied. Otherwise an Employment Tribunal cannot properly carry out the task of assessing whether … the Respondent has failed to make reasonable adjustments in applying the PCP and whether reasonable steps were taken to avoid the substantial disadvantage to which a disabled person is put by the application of the PCP. Harassment 28 The 2010 Act defines harassment in s26, the material subsections being the following: 1 British Airways Plc v Starmer [2005] IRLR 862 2 Nottingham City Transport Ltd v Harvey UKEAT/0032/12(1) A person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in sub-section (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. 29 In R (Equal Opportunities Commission) v Secretary of State for Trade & Industry [2007] ICR 1234 HC, it was accepted on behalf of the Secretary of State that the ‘related to’ wording of the definition of harassment in the EU Equal Treatment Directive (EU/2002/73/EC), Article 1.2.2, from which the 2010 Act, s26(1) is derived, did not require a ‘causative’ nexus between the protected characteristic and the conduct under consideration: an ‘associative’ connection was sufficient. Burton J did not doubt or question the concession. The EHRC Code of Practice on Employment (2011), which does not claim to be an authoritative statement of the law (see para 1.13), deals with the ‘related to’ link at paras 7.9 to 7.11. It states that the words bear a broad meaning and that the conduct under consideration need not be ‘because of’ the protected characteristic. We agree, subject to the caveat that more is required than a mere contextual (or ‘but for’) connection. There must be an evidential link between the act of the putative harasser and the protected characteristic of the complainant. So, for example, allegedly harassing treatment by A of X, a victim of sexual harassment by a third party, B, is not per se harassment related to X’s sex (or sex generally). The claim against A is not validated as one of sex-related harassment simply by virtue of the relevant conduct being linked contextually to the sexual harassment committed by B. But it will succeed if the Tribunal finds that A’s conduct is itself related to X’s sex (see Unite the Union v Nailard [2019] ICR 28 CA). 30 Despite the ample ‘related to’ formulation, sensible limits on the scope of the harassment protection are, we think, ensured by the other elements of the statutory definition. Two points in particular can be made. First, the Claimant must show that the conduct was unwanted. Second, the requirement for the Tribunal to take account of all the circumstances of the case and in particular whether it is reasonable for the conduct to have the stated effect (subsection (4)(b) and (c)) connotes an objective approach, albeit entailing one subjective factor, the perception of the complainant (s26(4)(a)). Here the Tribunal is equipped with the means of weighing all relevant considerations to achieve a just solution. 31 Central to the objective test is the question of gravity. Statutory protection from harassment is intended to create an important jurisdiction. Successful claims may result in very large awards and produce serious consequences for wrongdoers. Some complaints will inevitably fall short of the standard required. To quote from the judgment of Elias LJ in Land Registry v Grant [2011] ICR 1390 CA (para 47): Furthermore, even if in fact the [treatment] was unwanted, and the Claimant was upset by it, the effect cannot amount to a violation of dignity, nor can it properly be described as creating an intimidating, hostile, degrading, humiliating or offensive environment. Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment. The Claimant was no doubt upset … but that is far from attracting the epithets required to constitute harassment. In my view, to describe this incident as the Tribunal did as subjecting the Claimant to a ‘humiliating environment’ … is a distortion of language which brings discrimination law into disrepute. In determining whether actionable harassment has been made out, it may be necessary for the Tribunal to ascertain whether the conduct under challenge was intended to cause offence (ibid, para 13). More generally, the context in which the conduct occurred is likely to be crucial (ibid, para 43). Victimisation 32 By the 2010 Act, s27, victimisation is defined thus: (1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act – … (d) making an allegation (whether or not express) that A or another person has contravened this Act. 33 For the purposes of s27(2)(d), an allegation which is false and made in bad faith will forfeit protection (s27(3)). Subject to that, protection will attach to an allegation even if it is later shown not be well-founded, provided that it complains of conduct capable in law of amounting to a contravention of the 2010 Act (Waters v Commissioner of Police of the Metropolis [1997] ICR 1073 CA). When considering whether a claimant has been subjected to particular treatment ‘because’ he or she has done a protected act, the Tribunal must focus on ‘the real reason, the core reason’ for the treatment; a ‘but for’ causal test is not appropriate: Chief Constable of West Yorkshire v Khan [2001] ICR 1065 HL, para 77 (per Lord Scott of Foscote). On the other hand, the protected act need not be the sole reason: it is enough if it contributed materially to the outcome (Nagarajan, cited above). Protection against discrimination, harassment and victimisation 34 Discrimination is prohibited in the employment field by s39 which, so far as relevant, states: (2) An employer (A) must not discriminate against an employee of A’s (B) – … (c) by dismissing B; (d) by subjecting B to any other detriment. A ‘detriment’ arises in the employment law context where, by reason of the act(s) complained of, a reasonable worker would or might take the view that he or she has been disadvantaged in the workplace. An unjustified sense of grievance cannot amount to a detriment (Shamoon v Chief Constable of the RUC [2003] IRLR 285 HL). 35 Employees enjoy parallel protection against harassment and victimisation under the 2010 Act, s40(1)(a) and s39(4)(d) respectively. 36 2010 Act, by s136, provides: (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision. 37 On the reversal of the burden of proof we have reminded ourselves of the case-law decided under the pre-2010 Act legislation (from which we do not understand that Act to depart in any material way), including Igen Ltd v Wong [2005] IRLR 258 CA, Laing v Manchester City Council [2006] IRLR 748 EAT, Madarassy v Nomura International plc [2007] IRLR 246 CA and Hewage v Grampian Health Board [2012] IRLR 870 SC. In the last of these, Lord Hope warned (as other distinguished judges had done before him) that it is possible to exaggerate the importance of the burden of proof provisions, observing (para 32) that they have ‘nothing to offer’ where the Tribunal is in a position to make positive findings on the evidence. In Efobi v Royal Mail Group Ltd [2021] 1 WLR 3863, Lord Leggatt passed similar comments, adding (para 41): I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or decline to draw, inferences from the facts of the case before them without the need to consult law books before doing so. But where the burden of proof provisions have a part to play, we take as our principal guide the straightforward language of s136. Where there are facts capable, absent any other explanation, of supporting an inference of unlawful discrimination, the onus shifts formally to the employer to disprove discrimination. All relevant material, other than the employer’s explanation relied upon at the hearing, must be considered. 38 By the 2010 Act, s123(1) it is provided that proceedings may not be brought after the end of the period of three months ending with the date of the act to which the complaint relates, or such other period as the Tribunal thinks just and equitable. ‘Conduct extending over a period’ is to be treated as done at the end of the period (s123(3)(a)). Now, under the Early Conciliation provisions, the limitation period is further extended by the time taken up by the conciliation process. The ‘just and equitable’ discretion is a power to be used with restraint: its exercise is the exception, not the rule (see Robertson v Bexley Community Centre [2003] IRLR 434 CA). Unfair dismissal 39 The first prerequisite for an unfair dismissal is a dismissal. The Claimant bases her claim on an alleged constructive dismissal. By the Employment Rights Act 1996 (‘the 1996 Act’), s95 it is provided that: (1) For the purposes of this Part an employee is dismissed by his employer if … (c) the employee terminates the contract … (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct. The provision embodies the common law. A party to an employment contract is entitled to terminate it summarily in circumstances where the other party has repudiated it by breaching an essential term.[40]Terms of employment contracts may be express or implied. Some terms are automatically implied. These include the obligation of the employer not, without reasonable and proper cause, to conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between employer and employee (see Malik v Bank of Credit & Commerce International SA [1997] ICR 606 HL). Any breach of the duty to preserve mutual trust and confidence is inherently repudiatory.[41]The EAT has also recognised the right of an employee to a proper and timely means of redress for his or her grievances (WA Goold (Pearmak) Ltd v McConnell & another [1995] IRLR 516. Whether this is seen as an incident of the term of trust and confidence or as a free-standing implied term is, for present purposes at least, unimportant. But the significance of this decision should not be overstated. As the EAT pointed out in Hamilton v Tandberg Television Ltd EAT/65/02, the core defect in Goold was that the employee was not provided with access to a means of redress: no grievance procedure was made available. By contrast, the employee in Hamilton was granted, and exercised, the right to invoke a grievance procedure. The central complaint was as to the quality of the investigation. The EAT held that in such a case, the proper test was whether the employer’s conduct had satisfied the ‘band of reasonable responses’ test. See also Claridge v Daler Rowney Ltd UKEAT/0188/08, especially at paras 53-55: mere unreasonableness in the conduct of a grievance exercise will not amount to a repudiation of the contract of employment.[42]A constructive dismissal arises where the employee resigns in response to the repudiation by the employer without an intervening affirmation. The breach need not be the cause of the resignation but the employee must resign at least partly in response to it (see Meikle v Nottinghamshire County Council [2005] ICR 1 CA).[43]Affirmation of the contract as breached may arise where the innocent party has acted in a manner inconsistent with an intention to treat himself or herself as discharged from its obligations. Passage of time may point to affirmation but the key consideration is whether the innocent party’s conduct has shown an intention to remain in the employment relationship rather than leaving it (see Chindove v William Morrison Supermarkets Plc EAT/0201/13).[44]If there is a dispute as to whether a claimant was dismissed, the burden is upon him or her to prove dismissal. Subject to that, the outcome of the claim depends on the proper application of the 1996 Act, s98. It is convenient to set out the following subsections:(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 (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.(2) A reason falls within this subsection if it – … (a) relates to the capability or qualifications of the employee … (b) relates to the employee’s conduct … (c) is that the employee was redundant … or (d) is that the employee could not continue to work … without contravention … of a duty or restriction imposed by or under an enactment. (4) Where the employer has fulfilled the requirements 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.[45]The first effect of s98 is that, if there was a constructive dismissal, it is incumbent upon the employer to prove a potentially fair reason for it. The ‘reason’ for a constructive dismissal is the reason for the employer’s act or omission which precipitates the resignation. If a potentially fair reason is not shown, the dismissal is necessarily unfair.[46]Subject to a permissible reason being shown, s98 requires the Tribunal to weigh the reasonableness of the employer’s action. No burden applies either way. That said, given that a complaint of constructive dismissal does not get off the ground unless it is shown that the employer has committed a repudiatory breach of the employee’s contract of employment, it will be a rare case in which such a dismissal is not also found to have been unreasonable and unfair. The Primary Facts[47]The evidence was extensive. We have had regard to all of it. Nonetheless, it is not our function to recite an exhaustive history or to resolve every evidential conflict. The facts essential to our decision are set out below.[48]In arriving at our primary findings we have had careful regard to all the evidence put before us. We have considered the coherence, internal consistency and general plausibility of the witness evidence. We have also attached particular importance to contemporary documents.[49]As we have mentioned, the Claimant’s employment began on 22 July 2017. She was required to work 18.75 hours per week, spread over five ‘nominal sessions’ involving surgeries and clinics and a share of ‘extras’, visits and administrative tasks. Under her contract she was entitled to receive sick leave allowances of three months’ full pay followed by three months’ half pay, in each case inclusive of statutory sick pay. The contract also required her to maintain at her own expense full registration with the General Medical Council. It further declared that the Respondents’ grievance procedures applied to her.[50]The Claimant contracted Covid-19 on or around 28 October 2020 and was immediately signed off work. Unfortunately, she did not make a prompt recovery and in time developed symptoms of Long Covid. As we have recorded, it is common ground that she was disabled by that condition throughout the period of her sickness absence up to her resignation.[51]On 29 March 2021, the Claimant asked the Respondents to make an OH referral on her behalf. An OH practitioner, Dr Basil Assoufi, was instructed and a series of six very brief reports followed (dated 2 June 2021, 19 August 2021, 19 October 2021, 24 November 2021, 5 February 2022 and 3 May 2022). These declared the Claimant unfit for work, noted a slowly improving trend in her condition, adverted to the possibility of a phased return to work in due course and remarked that questions of reasonable adjustments were matters for employers to decide upon. She did not initially consent to the reports being disclosed to the Respondents, apparently because she wished them to be amended first, but it seems that she did give prompt consent for the first two reports to be shared with the Respondents on being asked to do so in early October 2021, and that she then instructed that future reports should also be released by the OH provider to the Respondents. Whether that instruction was complied with or not we do not know.[52]We cannot disagree with the Claimant that Dr Assoufi’s reports were notably light on detail and would have provided the Respondents with very little assistance in how to manage the case.[53]An informal meeting took place remotely on 7 October 2021 attended by the Claimant, Dr Dhall and Ms Magda Nagadowska, Practice Manager. It seems that two topics were discussed: the fact that the Respondents had not had sight of the OH reports and their efforts to recover compensation from central funds in respect of medical staff absent with Long Covid. As the Claimant’s message to the Respondents of 11 October stated, there was a degree of frustration on both sides during the meeting. Her later references to the tone of the meeting (presumably from the Respondents’ side) being ‘aggressive, hostile and interrogatory’ and even ‘overwhelming’ were, we find, much overstated. The meeting may not have been entirely comfortable for any of the participants but it did not spill over into sarcasm or bad temper.[54]The Claimant complained of a six-month delay in the Respondents producing notes of the meeting of 7 October 2021. The meeting was informal. She became aware over six months later that some rough notes had been made and, on 29 April 2022, requested copies. They were provided about 10 days later.[55]In the meantime, the Claimant was invited on 22 March 2022 to attend a ‘medical capability hearing’ on 25 March 2022, to be chaired by a consultant from the Respondents’ HR and employment law consultancy, Peninsula, to discuss her absence from work, her prospects of return and the possibility of alternative employment. The letter of invitation mentioned that one outcome of the meeting could be termination of her employment.[56]On 24 March 2022 Dr Dhall removed the Claimant and another absent member of staff from a work WhatsApp group. This action (relied on as grounding complaints of direct discrimination and disability-related discrimination, but not victimisation – LOI, paras 3.1.4 and 4.3.4) was said by the Claimant to be an act of retaliation for her message sent less than an hour earlier voicing concern about the short notice given for the medical capability meeting and complaining of ‘harassing and intimidating’ treatment. We accept the Respondents’ evidence that the relevant WhatsApp group was for work-related use by members of the Practice who were currently working. Removal of the Claimant did not preclude her from having social contact with other members of the Practice.[57]The formal capability meeting was postponed at the Claimant’s request and took place on 5 April 2022. It was chaired by Ms Helen Pearson of Peninsula; the Claimant attended, accompanied by Ms Gail Tatsis, a Senior Employment Advisor with the BMA. The notes in the bundle before us are, we find, a fair reflection of what was said. Two main points were pressed by or on behalf of the Claimant. First, it was quite inappropriate that a formal meeting was being held at all. That was both premature and disturbing. Second, subject to being provided with suitable support, she was eager to return to work (initially on a phased basis) and believed that there was a good prospect of her doing so successfully. It was the Claimant’s case (LOI, para 6.1.1) that the Respondents told the Claimant on 5 April that there had been ‘a financial impact on the Practice and an impact on her colleagues as a result of her absence.’ It is clear and undisputed that, either on that day or on a date around that time, seemingly through the Practice Manager, the Respondents provided detailed information to Dr Pearson concerning the impact of the Claimant’s absence on the Practice and its finances in terms of increased workload of other practitioners and the Practice Manager, loss of continuity of care (leading to dissatisfaction on the part of patients) and considerable additional costs (particularly those resulting from the need to engage locum cover). We find that these concerns were sincerely-held and solidly based in fact.[58]Ms Pearson did not announce any outcome at the end of the meeting. A full record of the meeting was sent to the Claimant on 13 April 2022 together with a report by Ms Pearson which noted that the current medical position was uncertain and that the impact of her absence on the practice might make it necessary to consider termination of her employment in the future. The Claimant’s observations were sought.[59]As we understand her, the Claimant complains (LOI, para 6.1.2) that the Respondents ‘withheld’ (apparently from Ms Pearson) copies of her proposed amendments to the first two OH reports intended to lay emphasis on the fact that she was keen to return to her position as soon as possible. We have some difficulty in understanding this complaint. She met Ms Pearson and had ample opportunity to tell her (if she thought it necessary) why she regarded the OH reports as unsatisfactory and, more generally, to stress her genuine interest in returning to work as soon as possible. In any event, we find no evidence of any suppression by the Respondents of any relevant information, as suggested or at all.[60]On 29 April 2022 the Claimant responded. She pointed out that she had remarked at the meeting about her concerns over the lack of detail in the OH evidence and repeated her hopes that referral to another OH practitioner might prove more ‘directive and supportive’ in guiding her back to work. She also made the point that she had hospital consultations booked, in the light of which she believed that a review in early July would be appropriate.[61]On 27 May 2022 the Claimant wrote to the Respondents asking for her case to be referred to a fresh OH practitioner. The request was granted and Dr Pauline Diack was instructed in place of Dr Assoufi. She conducted an assessment on 22 July 2022 and produced a report dated 4 August 2022. Having reviewed the Claimant’s condition and symptoms in some detail, she concluded that ‘with adequate planning and pacing of activities’, she was fit to undertake a phased return to work. She estimated the period over which adjustments would be required variously at ‘around six months’ and ‘at least six months’. The recommended phasing would begin at two hours per day, two days per week and build up from there. She warned that an immediate return to contracted hours would be likely to be exhausting and prove unsustainable in the longer term.[62]Pursuant to the Claimant’s authority, Dr Diack’s report was released to the Respondents.[63]On 27 September 2022 a second medical capability meeting was held. Those present were the Claimant, Ms Tatsis, both Respondents and Ms Shona-May Elliott, the Deputy Practice Manager. The conversation revolved principally around the recommendations in Dr Diack’s report. The Respondents asked a number of questions about how the return to work would operate, raising certain scenarios and hypotheses. At one point Ms Tatsis intervened to make the point that it was understood all round that the return to work would be accomplished over a limited period of time. Not long afterwards, Dr Sukumaran asked the Claimant directly if she was looking to return to her original work pattern, to which she replied that she was. Dr Sukumaran asked how long she thought that would take. The Claimant’s reply was equivocal. Dr Sukumaran then asked: ‘Do you think it might take, like, five years?’ We have listened to a recording of the meeting and that exchange in particular. We make secondary and evaluative findings below. It is sufficient here to say that we could detect no taunt or mockery or condescension in the questioner’s delivery. In the discussion which followed, the Claimant, while acknowledging that Covid-19 charts an ‘uncertain course’, associated herself with Dr Diack’s estimate of around six months. Dr Sukumaran expressed the hope that she was right but voiced reservations having regard to the inherent uncertainties of the situation. She also mentioned questions of cost, staff morale and related points. The meeting ended on the understanding that the Respondents would review the situation and make their decision upon it. On behalf of the Claimant, Ms Tatsis stressed the value of there being a clear plan in place when any return to work began.[64]On 22 November 2022 the Respondents completed a ‘Business Case’ document and provided a copy to the Claimant. The document acknowledged that, on the face of things, a phased return over six months should be ‘instantly reasonable’ but then turned to detailed implications and concluded that it would place an excessive burden on the Practice’s ‘already stretched staff and resource’.[65]There was then a series of exchanges about a date for a third medical capability meeting before the parties agreed on 17 January 2023. The meeting went ahead on that date and was attended by the same individuals as had been present at the meeting of 27 September 2022. Again, the discussion centred on the practical implications of a phased return to work. The Respondents, consistent with the ‘Business Case’ document, were gloomy about the uncertainties involved. They stressed the intense financial pressures which the practice was contending with, Dr Dhall remarking that the ‘camel’s back’ was already ‘broken’. They also expressed fears about staff morale, Dr Dhall referring to comments about an unnamed person (presumably the Claimant) being seen ‘out for coffee’ or ‘out for a jog.’ As before, the meeting was inconclusive.[66]On 1 February 2023 the Respondent’s Deputy Practice Manager wrote to the Claimant to draw attention to a vacancy for a GP Assistant role about to be created at the practice. The message did not encourage or invite her to apply; it merely informed her of the fact that the position was being created.[67]The Claimant replied in short order, stating that she was not interested in a GP Assistant position, that she remained committed to returning to her contracted role and that she awaited the Respondents’ response following the meeting of 17 January.[68]After a further chasing message from the Claimant on 16 February 2023, the Respondents wrote to her on 27 February 2023 setting out proposed arrangements for a phased return to work as part of a ‘structured capability procedure’. In summary, week one would consist of telephone/home working for no more than two hours on each of two non-consecutive days; from week two onwards she would work (presumably in the Surgery) for not less than two hours on each of two nonconsecutive days, and there would be ‘formal capability review meetings’ with a view to developing the return to work while maintaining patient safety and responding to business and operational needs. At the end of a period of three months there would be a full review at which the options open to the Respondents would extend from taking no further action to extending the review period to dismissal on capability grounds. Implementation of the return to work plan would involve the temporary variation of the Claimant’s contract of employment, reducing her to four sessions per week (from 4.5), with commensurate reductions in her entitlements to contractual benefits.[69]The Claimant based claims (LOI, para 4.3.6 and 6.1.7) on alleged delays in answering queries raised on 17 January 2023 and in providing amended notes of the meeting of 27 September 2022. The Respondents acknowledged a degree of delay in responding to Dr Diack’s report of 4 August 2022 (as to which no claim is before us), explaining that it was attributable largely to three factors: loss of a highly experienced practice manager and her replacement requiring a great deal more help and support; loss of three GPs; and the absence of one of the two partners for a continuous period of some two months following diagnosis of a very serious medical condition. None of these alleged circumstances was the subject of challenge (or at least effective challenge) before us and we find that they are established in fact. Turning to the two pleaded claims, we are unclear what the alleged period of delay is in relation to the meeting notes. Nor are we sure that any claim is in fact pressed. On the Claimant’s own case, the changes which she proposed to the draft notes were minor in any event. As for the alleged delay in addressing matters raised on 17 January 2023, we note that the interval between that meeting and the Respondents’ letter of 27 February 2023 was about six weeks.[70]After an interval of about four weeks, Ms Tatsis wrote to the Respondents on 27 March 2023 raising a number of points about the proposals in the letter of 27 February 2023. Four particular contentions must be mentioned. First, the reference to a ‘formal capability procedure’ was inappropriate and must be deleted. Secondly, it was necessary to specify the activities which the Claimant would be required to perform during the period of the return to work. Thirdly, the Respondents needed to state what training she was required to undertake. Fourthly, the reference to a variation of contract was inappropriate: the return to work arrangements should simply stand as a reasonable adjustment in accordance with the Respondents’ statutory obligations.[71]Some five weeks later, on 4 May 2023, the Respondents replied to Ms Tatsis’s letter of 27 March, supplementing the detail of the proposed return to work outlined in the letter of 16 February, expressing the hope that it could be implemented soon and withdrawing the reference to a ‘capability procedure’, explaining that the term had been used in error.[72]On 23 May 2023 Ms Tatsis wrote again to the Respondents, raising three main issues. First, she required confirmation as to whether the ‘formal capability procedure’ was concluded. Second, she complained that the proposed return to work plan still provided insufficient detail of the activities which the Claimant would be expected to undertake. Third, she emphasised that the Claimant would need reassurance that the return to work would have flexibility built into it, acknowledging that her symptoms would be likely to fluctuate and allowing her to work at her own pace and subject to regular reviews, at least over the initial stages.[73]On 8 June 2023 the Respondents received advice from Mr Andrew Kellard, Employment Adviser in the Member Relations Directorate of the British Medical Association. Among other points, Mr Kellard advised that, since the Claimant had been absent from her GP role for over two years, she might need to carry out an official ‘Return to Practice’ (‘RtP’) programme before returning to work. He explained that any such programme was the responsibility of the practitioner concerned and that the obligations upon an employer were not entirely clear. He also drew attention to some sources of information available through Health Education England (‘HEE’), a non-executive public body within the Department of Health and Social Care.[74]The same day, after carrying out some research on the HEE website, the Respondents’ Deputy Practice Manager wrote to the Claimant. She noted that the RtP rules appeared to differ according to whether the relevant practitioner was, or was not, on the Medical Performers List (‘MPL’, a register maintained by NHS England of persons authorised to work independently in general medical practice in England) and asked more generally if she had looked into the question of an RtP programme.[75]The Claimant replied on 9 June, stating that she remained on the MPL and that she had not looked into the RtP matter but was willing to engage with any suitable return to work process.[76]In mid-June 2023 the Respondents were put into contact with Dr Rizvia Khan, who was in charge of, or at least held a senior position in, the RtP scheme. She advised that the Claimant was suitable to be admitted to the scheme and that, if the Practice was ‘an approved training practice with an approved trainer’ she would be able to undertake the programme there.[77]The Respondents are and were licensed to provide a training course for newly-qualified GPs but not an ‘approved training practice’ for the purposes of the RtP scheme. They had no experience of the scheme and accordingly no idea of the nature of the training which would be required.[78]Moreover, they had by then committed themselves to providing the new GP course for a full cohort of trainees and so discounted the possibility of providing the RtP course for the Claimant in any event.[79]The Respondents provided the Claimant with Doctor Khan’s contact details and a meeting between the two took place on 11 July 2023. Doctor Khan noted that the Respondents had already said that they had no capacity to supervise her return to work and suggested that she should revert to them to confirm whether that remained their position. She also outlined how the RtP scheme worked, noting that the first step would be to take a multiple-choice test, the earliest date for which was 23 August 2023. In addition, she pointed out that, since the Claimant remained on the MPL, she was required to sign an undertaking not to work in NHS primary medical services until she had completed the RtP course. Further, Doctor Khan noted that the Claimant hoped to take up a placement on a part-time basis close to her home, although she added that many placements had been filled already.[80]The Claimant wrote to the Respondents on 17 July 2023 summarising her discussion with Doctor Khan and looking to them regarding next steps. The Respondents proposed a meeting but the Claimant (not unreasonably) felt that the notice given was too short and the proposed date was lost. Inconsequential correspondence followed. The Respondents sought advice from the BMA, the NHS England ‘Responsible Officer’, Doctor Helene Brown and others. No concrete proposal to move the case forward was made, the Respondents maintaining the position that they had neither the capacity nor the expertise to supervise the Claimant on the RtP programme.[81]On 11 September 2023 the Claimant issued a formal grievance. The document was more than 12 pages long, typed in small font. In essence, it covered the same ground as the proceedings before us. At the end, a summary picked out six ‘key issues’:(1) the time taken to decide upon her return to work;(2) the fact that her return had still not been accomplished;(3) the financial loss which had resulted from her absence from work;(4) harassment and detrimental treatment generally;(5) harassment and inequitable treatment in the particular context of disability;(6) ‘lack of duty of care by the surgery’.[82]On 17 October 2023 a grievance meeting was conducted by Mr Anthony Harris of Peninsula. The other persons present were the Claimant and Ms Tatris. The meeting lasted for about three hours, inclusive of a short break. The minutes run to some 37 pages. The Claimant presented her complaints at length and made repeated allegations that the Respondents had ‘made efforts to harass, intimidate, coerce, bully, mock, shame and obstruct’ her in her attempts to return to work. She was given a full opportunity to go through and develop her six ‘key issues’. She explained that she was looking for compensation for lost earnings and the lost opportunity to progress her career and the added requirement (on her case) to undertake the RtP course which, she maintained, would not have been necessary if the Respondents had acted promptly to get her back to work within two years of her last worked shift. At one point quite early in the meeting Mr Harris asked her if she would be happy to return to the Cloister Road practice. She gave a notably guarded response. At another point Ms Tatris said that the Respondents were using the requirement to undertake the RtP programme as a ‘get out clause’. Later again, Ms Tatris remarked that, as matters now stood, a return to work would not ‘necessarily’ be a solution ‘because we need to have redress’.[83]During the meeting the Claimant forwarded to Mr Harris 53 documents, consisting mostly of emails and audio files. She placed reliance on the audio files as supporting her allegations of harassing and offensive remarks made by the Respondents at meetings, arguing that the written record of those meetings was inadequate by itself because it did not convey the speaker’s tone and manner.[84]In the course of his investigation, Mr Harris also interviewed Doctor Dhall and considered written representations by both Respondents.[85]The Claimant complains (LOI, paras 3.1.7, 4.3.10, 6.1.8 and 7.2.2) of direct discrimination, discrimination arising from disability, harassment and victimisation in the form of Mr Harris (as agent for the Respondents) ‘threatening to remove the Claimant from the MPL’. The allegation appears to rest on emails sent by Mr Harris to the Claimant on 7 and 8 November 2023. The first questioned the Claimant’s eligibility for continued inclusion on the MPL and observed that there was a statutory power of removal of GPs unable to demonstrate a history of working in an NHS primary care setting during the preceding 12 months. In the circumstances, Mr Harris enquired about a recent appraisal which the Claimant had undergone and how she had been able to evidence working in a primary care setting in circumstances where she had been absent for more than 12 months. The second email was a repeat of the first. Neither contained any ‘threat’ to remove the Claimant from the MPL. There was no suggestion that Mr Harris had any power to do any such thing. He asserted no such power.[86]On 24 November 2023 Mr Harris sent his adjudication on the grievance to the Claimant. He prefaced his findings with these observations (report, para 107): For clarity, it is not within the remit of the … Consultant to investigate whether the evidence provided is genuine but to accept it in good faith, and where no evidence exists, to determine an outcome based on the ‘Balance of Probabilities’ supported by reasonable justification. In the first place, he was not persuaded that the Respondents had ‘deliberately’ delayed the Claimant’s return to work. Second, he acknowledged that the Claimant had suffered some financial loss in that it would now be necessary for her to complete the RtP programme before returning to work. That said, he ruled that the loss of income could not safely be attributed ‘solely’ to the Respondents’ actions. Third, he rejected the allegations of harassment and bullying treatment. Fourth, he rejected the parallel complaint which referred to disability on the basis that it had not been shown that the Claimant had been placed at any disadvantage. Finally, he rejected the alleged failure to comply with a duty of care, finding that the Respondents had undertaken meetings seeking to facilitate a return to work and noting that adjustments which had been recommended might not have been feasible.[87]On 30 November 2023 the Claimant appealed against Mr Harris’s determination on numerous grounds.[88]On 19 December 2023 a grievance appeal hearing was held by Mr Jim Crouch of Peninsula. The Claimant attended, accompanied by Ms Tatris. The notes, which run to over 60 pages (closely typed) are, we find, a fair reflection of what was said. The Claimant’s case on appeal corresponded closely with that pursued before Mr Harris and in the proceedings before us.[89]Mr Crouch also interviewed the Respondents.[90]In addition, Mr Crouch reviewed a large bundle of documents which included 36 appendices.[91]On 20 February 2024 Mr Crouch’s decision on the grievance appeal was sent to the Claimant. In summary, his conclusions, based on the grounds of appeal, were as follows.(1) Some of the 46 documents submitted by the Claimant had not been read by Mr Harris because he had not been able to open them. Nonetheless, it was evident that he had read into the case and had collated substantial evidence to support his findings. Moreover, Mr Crouch’s reading had included all of the 46 documents about which the Claimant was concerned.(2) The Claimant’s ‘feeling’ that Mr Harris had not spoken to Dr Sukumaran was not a proper point of appeal and, directing himself as Mr Harris had done in para 107 of his report (see above), Mr Crouch was not in a position to substantiate that alleged ‘feeling’.(3) As to the Claimant’s complaints that Mr Harris had misquoted her and taken her words out of context, Mr Crouch noted that the Respondents acknowledged that in setting out their proposals for her return to work they had inappropriately referred to a ‘capability process’, and had corrected that error. More generally, he approved Mr Harris’s findings, judging that the Respondents had been supportive and (in relation to the matter of the RtP programme) acted in accordance with regulations.(4) On the complaint that Mr Harris’s report contained factual inaccuracies, particularly in relation to the dispute over the planned return to work, Mr Crouch disagreed, taking the view that (as Mr Harris had found) the Respondents had had to weigh up the complex issues and implications to which Dr Diack’s report gave rise.(5) In answer to the allegation that the Respondents’ resistance to the grievance complaints amounted to harassment, Mr Crouch agreed with Mr Harris in concluding to the contrary.(6) Mr Crouch rejected a complaint that Mr Harris had failed to deal with significant matters raised in the grievance.(7) As to the complaint (run in parallel to ground (5)) of ‘retaliatory’ conduct by the Respondent, Mr Crouch again agreed with Mr Harris in rejecting the allegation.(8) Finally, Mr Crouch found that the Claimant’s allegation of bias in the grievance process was unsubstantiated on the evidence.[92]On 20 February 2024 Dr Sukumaran wrote to the Claimant enclosing a copy of Mr Crouch’s report, stating that she agreed with it and pointing out that the grievance process had reached an end. She asked the Claimant to update her on her current health and steps taken to be restored to the MPL.[93]The Claimant replied to Dr Sukumaran on 4 March 2024, advising that her health continued to improve, she had been approved to undertake ‘the MPL refresher route’ (presumably what is referred to above as the RtP programme, but in any event the training course which she was required to take as a condition precedent to being free to return to medical practice) and that she was currently ‘awaiting confirmation regarding logistics and placement’.[94]On 4 April 2024 the Respondents asked the Claimant for an update.[95]By a letter of 5 April 2024 the Claimant resigned without notice. She complained that, since the initial meeting of 7 October 2021, she had felt ‘intimidated and harassed’ by the Respondents and been subjected to ‘hostility, derision, mockery’ and ‘hurtful, irreverent and flippant’ remarks. She also relied on the Respondents’ delay in agreeing to a return to work and alleged that the proposal was ‘tied into a punitive capability process and .. disingenuous.’ These events were followed, she maintained, by a grievance exercise which ‘made a mockery of the grievance process’ and an appeal which continued in similar vein. In summary, she claimed to be the victim of ‘egregious discrimination and breaches of trust and confidence’. Accordingly, resignation was ‘necessary’ on the basis that the Respondents’ conduct had fallen ‘so far below the required standards’ that the relationship between the parties was ‘no longer tenable’.[96]The same day, the Claimant presented her first claim form. The second, the main effect of which was to add a complaint of unfair dismissal, followed on 17 May 2024. Secondary Findings and Conclusions Direct disability discrimination Detrimental treatment?[97]The first alleged detriment (LOI, para 3,1,1) was said to be subjecting the Claimant to a ‘hostile and accusatory’ meeting on 7 October 2021. This fails on the facts. We find that the Claimant characterises the meeting unfairly and that no conduct which could properly be called detrimental arose.[98]LOI, para 3.1.2 was the complaint of a six-month delay in providing the Claimant with the minutes of the meeting of 7 October 2021. This is groundless: there was no obligation to provide a private note of an informal meeting, and when a copy was requested the Respondents obliged in short order. No detriment is shown.[99]LOI, para 3.1.3 does identify a detriment. It was obviously unwarranted and unreasonable to invite the Claimant, a disabled person, to a formal meeting in March 2022 at which (so it was said) her continued employment would be in jeopardy. At that stage, no informal steps had been taken and the Respondents were not in possession of the material facts. It was doubly detrimental to give her no more than three days’ notice of the meeting. (The fact that the meeting was postponed at the Claimant’s request does not undo the prior detrimental act.)[100]Under LOI, para 3.1.4 we find no arguable detriment. It was no detriment to the Claimant to be removed from the WhatsApp group, which was for work, rather than social use, given that she was not currently working and there was no immediate prospect of her returning.[101]LOI, para 3.1.5 clearly identifies a detriment. It was detrimental to the Claimant that the Respondents did not facilitate a return to work (if that was possible) and, in or around August 2023, abandoned all attempts to do so.[102]LOI, para 3.1.6 complains of the Respondents notifying the Claimant on 7 August 2023 that they did not have the necessary expertise or supervisory capacity to deliver ‘the return to work programme’. We can only interpret those words as a reference to the RtP programme. Here we are not persuaded that an arguable detriment is shown. Contrary to Mr Boyd’s submission, we are unable to accept that the rules and requirements surrounding membership of the MPL and the RtP scheme were straightforward. The Respondents received uncertain advice from various quarters. Given what they knew as at 7 August 2023, they were certainly entitled to express doubt as to whether they had the necessary expertise to deliver the programme, which (it seems) was quite different from the training programme for newly-qualified GPs, with which they were familiar. And given the uncertainty about what the RtP programme involved, and the fact that they were already committed to training a number of newly-qualified GPs, it was proper and certainly unobjectionable for them to express doubts as to whether they had the capacity to see the Claimant through the RtP programme within the Practice.[103]LOI, para 3.1.7 accuses Mr Harris of threatening to remove the Claimant from the MPL. This is groundless. He made no such threat. No detriment is shown.[104]Giving LOI, para 3.1.8 a generous reading, we find detrimental treatment established in that Mr Harris’s investigation of the grievance did not fully do justice to it. As we will explain in more detail below in relation to the complaint of unfair dismissal, we are satisfied that the grievance investigation had a number of unsatisfactory features. The low bar of establishing a detriment is surmounted.[105]We also find a detriment under LOI, para 3.1.9, for very similar reasons. Detrimental treatment ‘because of’ disability?[106]Our analysis so far leaves four complaints of direct disability discrimination standing: those under LOI, paras 3.1.3, 3.1.5, 3.1.8 and 3.1.9. Was the detrimental treatment which is established done to the Claimant ‘because of’ her disability and did it amount to less favourable treatment than would have been applied to her hypothetical non-disabled comparator whose circumstances were otherwise indistinguishable from hers? The obvious answer to both questions is no. The Claimant faces the inherent difficulty of demonstrating the necessary proscribed reason operating on the mind of the putative discriminator. Direct discrimination is not concerned with treatment based on any consequence of disability but on disability itself. For such a claim to succeed, the Tribunal must find that a nondisabled comparator whose circumstances were otherwise the same or not materially different to the complainant’s would have been treated more favourably than he or she was. In the nature of things, discrimination based purely on the fact of having a particular condition or impairment is unusual. There is no rational basis for inferring such discrimination in this case.[107]Recognising that the bar for finding detrimental treatment is low and that accordingly there may be room for a different view from ours on the question whether detriment is established in respect of LOI, para 3.1.4 (as to which, see above) we would add for completeness that, had we found an arguable detriment, we would have held that the treatment was manifestly not done ‘because of’ the Claimant’s disability, but because of a consequence of her disability, namely her absence from work. Further, we decline to engage with the separate allegation that the treatment was an ‘act of retaliation’, which is not consistent with her pleaded case and, if upheld, would argue against her interests in any event. Direct disability discrimination – summary[108]For the reasons stated, we have concluded that most complaints of direct disability discrimination fall away at once because the Claimant fails to demonstrate an arguable detriment and that those which survive (LOI, paras 3.1.3, 3.1.5, 3.1.8 and 3.1.9) must be dismissed because the detrimental treatment is not shown to have been applied to her ‘because of’ her disability and there is no basis for supposing that a hypothetical, non-disabled comparator would have been treated more favourably than she was.[109]The difficulty of making out a complaint of direct disability discrimination explains Parliament’s thinking in enacting a range of other disability-based or disability-related protections, on some of which the Claimant relied. Disability-related harassment Arguable acts of harassment?[110]We have reminded ourselves that the test under the 2010 Act, s26 sets a higher standard than s13. It follows that, in so far as the complaints of harassment correspond with those of detrimental treatment, any which has failed for want of a detriment being shown inevitably also fails on the basis that the Claimant falls short of establishing treatment capable of amounting to harassment. This reasoning disposes of the harassment complaint under LOI, para 6.1.8 (corresponding with para 3.1.7). We will consider the remaining seven in turn.[111]The complaint under 6.1.1 does not identify conduct capable of constituting harassment. The Respondents’ frank statement at the meeting on 5 April 2022 about how they saw the consequences of the Claimant’s absence from work was unobjectionable and, in any event, came nowhere near to satisfying the powerful language of the 2010 Act, s26.[112]The allegation under LOI, para 6.1.2 of ‘withholding amendments’ to a report of Dr Assoufi is not established in fact. In any event, such behaviour, even if proved, could not come close to amounting to an act of harassment.[113]LOI, para 6.1.3 complains of ‘mockery’ of the Claimant and her disability by Dr Sukumaran at the meeting of 27 September 2022. On our findings, there was no mockery and no behaviour capable of amounting to harassment. The question about the return to work extending over five years was surprising and unfortunate. We are prepared to say that it was ill-judged. But it was certainly not contrived to offend or hurt and was merely eloquent of the speaker’s understandable scepticism about the likelihood of the Claimant’s return being achieved in six months.[114]LOI, paras 6.1.4 and 6.1.5 can be taken together. These also fail on the ground that no behaviour capable of amounting to harassment is shown. The Respondents on 17 January 2023 simply voiced their concerns in a candid way about the consequences of the Claimant’s absence and the difficulties which might arise from a phased return to work. Moreover, it seems to us that LOI, para 6.1.4 misrepresents the remarks complained of and/or takes them out of context. The Respondents’ concern was not so much that her return would demoralise other staff members as that that an unsustained or extended return process would have that effect, given the goodwill that had already been used up. In any event, whether this is right or not and whether she found their observations uncomfortable or not, they stopped a very long way short of being capable of constituting harassment.[115]The complaint under LOI, para 6.1.6 also fails as a complaint of harassment. The Respondents did not act unreasonably in drawing the Claimant’s attention to the GP Assistant vacancy, although it might have been more tactful to say explicitly that the notification was not intended to imply that the Respondents thought that she should lower her sights professionally. Communicating the vacancy was certainly not an act of spite or designed in any way to hurt or offend her and does not come close to conduct capable of constituting harassment.[116]As to LOI, para 6.1.7 the delay in responding to the Claimant’s queries of 17 January 2023 was minor and the evidence does not establish any period of delay relating to the notes of the meeting of 27 September 2022. In any event, the latter complaint is trifling: on her own case the amendments which she proposed to the notes were not significant. Nothing capable of constituting harassment is shown. Disability-related harassment – summary[117]These ambitious claims fail. The Claimant does not clear the first hurdle of demonstrating conduct which the Tribunal could find capable of amounting to harassment. Discrimination arising from disability[118]The Claimant pursues 12 complaints under this head (LOI, paras 4.3.1 to 4.3.12.) Most have already been considered under parallel claims. Unfavourable treatment?[119]The complaints under LOI, paras 4.3.1, 4.3.2, 4.3.4, 4.3.5, 4.3.9 and 4.3.10 fail on our findings already made in respect of other claims (under LOI, paras 3.1.1, 3.1.2, 3.1.4, 6.1.6, 3.1.6 and 3.1.7 respectively). Allowing that the legislation sets the bar low, we are confident that Parliament did not intend to enact a protection liable to bring the law into disrepute by proscribing trivial acts. We find that no adverse conduct is shown of sufficient weight to be sensibly regarded as actionable.[120]Unfavourable treatment is made out in relation to LOI, para 4.3.3. This follows from our finding above of detrimental treatment in relation to the parallel complaint of direct discrimination under LOI, para 3.1.3.[121]As to LOI, para 4.3.6, there was a modest delay by the Respondents in answering the points raised by the Claimant on 17 January 2023, and accordingly the undemanding requirement to show unfavourable treatment is satisfied.[122]We are not persuaded that any unfavourable treatment is demonstrated under LOI, para 4.3.7. In our view, the proper interpretation of events is that, on 27 February 2023, the Respondents were seeking to engage constructively with the Claimant about practical arrangements to implement Dr Diack’s report in a way which appropriately balanced her interests with those of the Surgery’s other staff and its patients. They did not offer return to work terms on a ‘take it or leave it’ basis. Their proposals were put forward in good faith. The fact that the Claimant did not feel able to accept all of them does not mean that the Respondents in putting them forward subjected her to unfavourable treatment.[123]It is appropriate to deal here with a separate point in relation to LOI, para 4.3.7. Mr Boyd submitted that the Respondents’ proposals on 27 February 2023 were tactical and insincere and that they had no intention of entering into any arrangements for the Claimant’s return to work. This seems to us characteristic of his notably flexible approach to the LOI (see further below). The agreed complaint is that the proposals were not fit for purpose and contrary to the adjustments proposed by Dr Diack. Mr Boyd’s allegation that they were a cynical contrivance extends the Claimant’s case to an impermissible extent. But in any event, if the allegation was properly before us at all, we would reject it as unfounded in fact. The proposals were not a device: they were simply the unsurprising consequence of the Respondents having re-thought their position (perhaps in light of advice received, although they were unwilling to say so).[124]As to LOI, para 4.3.8, our finding of detrimental treatment in respect of the parallel claim of direct disability discrimination (LOI, para 3.1.5) dictates the conclusion that unfavourable treatment is demonstrated here.[125]Likewise, it follows from our findings above of detriments for the purposes of direct discrimination based on deficiencies in the grievance investigation and subsequent appeal (under LOI, paras 3.1.8 and 3.1.9) that unfavourable treatment is made out under LOI, paras 4.3.11 and 4.3.12. Because of something arising in consequence of the Claimant’s disability?[126]The LOI, para 4.1 confirms the position taken by Mr Boyd on behalf of the Claimant at the hearing, namely that the only ‘something arising’ was the Claimant’s absence from work. It was surprising to read in Mr Boyd’s closing submissions apparent attempts to rely on other facts or circumstances as additional ‘somethings’. Plainly, our duty is to decide the case according to the agreed issues.[127]The instances of unfavourable treatment, on our findings already given, are those under LOI, paras 4.3.3, 4.3.6, 4.3.8, 4.3.11 and 4.3.12. Was any applied to her ‘because of’ her absence from work? To put it another way, was her absence from work the reason, or at least a material reason, for the unfavourable treatment?[128]The question has an easy answer in relation to LOI, para 4.3.3. The Claimant’s absence from work was, self-evidently, the reason for the Respondents to invite her, on 22 March 2022, to a formal ‘medical capability meeting’.[129]In our judgment, the question has an equally easy answer in relation to the other surviving claims. But this time the answer is against the Claimant. Her absence from work was, of course, the context in which the other instances of unfavourable treatment arose (and can be seen as a ‘but for’ cause of it) but it was not the reason, or a reason, for the treatment. The absence did not serve as an influence upon the mental processes behind the behaviour complained of. We see no ground for thinking that the modest delay in responding to the Claimant following the meeting of 17 January 2023 or the abandonment of efforts to agree arrangements for a return to work or deficiencies in the grievance procedure at either stage were to any extent motivated by the fact that she was away from work.[130]We return to LOI, para 4.3.4 (concerning removal from the Whatsapp group). We have found no unfavourable treatment under this head but, in case we are wrong on that point, the treatment was certainly because of something arising from the Claimant’s disability, namely her absence from work. Proportionate means of achieving a legitimate aim?[131]In relation to the sole surviving claim, that under LOI, para 4.3.3, can the Respondents escape liability by making out the statutory defence of justification, namely that the unfavourable treatment amounted to a proportionate means of achieving a legitimate aim? Here again, the question answers itself. Accepting the Respondents’ stated aim, namely to maintain a safe, financially viable and stable medical practice (LOI, para 4.2), we think it self-evident that inviting the Claimant out of the blue to attend a formal meeting at which her future employment would be in jeopardy, and giving her less than 72 hours’ notice of it, was anything but proportionate. There was no case for holding a formal meeting at that stage. In any event, giving less than 72 hours’ notice was both unnecessary and unreasonable.[132]We return (again) to LOI, para 4.3.4. We have found above that there was no unfavourable treatment here but that, if we are wrong on that point, the treatment was because of something arising in consequence of the Claimant’s disability, namely her absence from work. On this analysis, we would need to look to the parties for further assistance since their joint formulation of the dispute does not cater for the s15(1)(b) defence. In particular, no ‘legitimate aim’ relevant to this head of claim has been identified. Accordingly, our alternative line of reasoning peters out at this point. Discrimination arising from disability – summary[133]We conclude that many claims fail because unfavourable treatment is not demonstrated. Of those in respect of which unfavourable treatment is shown, all but one fails on the ground that treatment was not applied to the Claimant ‘because of’ the ‘something arising’ on which, in accordance with the agreed list of issues, she is entitled to rely. As to the claim which passes the first two elements of the test (that under LOI, para 4.3.3), the Respondents’ defence under the 2010 Act, s15(1)(b) fails. Accordingly, subject to the question of time (to which we will return below), that claim is entitled to succeed. Provisions, criteria and practices (‘PCPs’)[134]The first PCP (‘PCP1’) is said to be ‘the requirement for the Claimant to return to work on a full-time basis without a phased return in line with the occupational health report of Pauline Diack’. We leave aside the obvious error in the reference to full-time working, given common ground that the Claimant was always employed part-time. The PCP rests on an assertion that she was required to return at once to her original working pattern, rather than under a phased programme of the sort envisaged by Dr Diack. Is that PCP established in fact? The obvious answer is no. The Respondents imposed no such requirement. They proposed a phased return in their letter of 27 February 2023. An exchange of correspondence followed. The discussion faltered and eventually dried up, but not as a consequence of the Respondents resiling from their proposal or seeking to stand on the original contractual work pattern.[135]The second PCP (‘PCP2’) is said to be ‘the requirement for the Claimant to return to work on a phased return for a period of three months as part of a capability process’. Here again, the PCP is not established in fact. The letter of 27 February 2023 conveyed a proposal made in good faith with a view to reaching agreement on how to resolve a difficult workplace problem. The proposal was not put forward on a ‘take it or leave it' basis. It invited a constructive response, which it received. The dialogue continued. The Respondents rightly acknowledged that the reference to a ‘capability process’ had been inappropriate and withdrew it. They did not impose or apply a provision, criterion, practice or requirement of the kind envisaged by PCP2.[136]PCP3 is said to consist of a ‘requirement for the Claimant to work from the Respondents’ premises’. It would be established in fact if it was interpreted as referring to the Respondents’ general practice or rule of requiring GPs to work at the Surgery. But was the Claimant’s case put this way? We think not, for two reasons. First, because we do not find this analysis put forward in the closing submissions, although we are bound to say that we did not in all respects find Mr Boyd’s long and discursive documents easy to follow. Second, because this interpretation would be inconsistent with the language used to frame PCP3 and each of the other three PCPs. All refer not to provisions or practices of general application but to the Respondents’ actions directed specifically to the Claimant. If, as we believe, PCP3 must be read as asserting that the Respondents imposed the stated requirement on the Claimant in the context of the dialogue about her proposed return to work, it is not founded in fact. As we have noted, their proposal (not put forward on ‘take it or leave it’ terms) was that she should start by working remotely. And, in any event, the proposal never crystallised into a provision, criterion, practice, rule or requirement.[137]PCP4 is expressed as: ‘Advising the Claimant that she would be required to complete the return-to-work programme with a GP practice that [was] not the Respondents’. Assuming that the ‘programme’ is the RtP programme, we find that this is established in fact: as we have recorded, the Respondents did state clearly and repeatedly that they did not regard themselves as qualified to deliver the RtP programme and, in any event, did not have the capacity to do so, given their commitment to train a number of new GPs (under a different programme, which they were qualified to deliver).[138]To recapitulate, our reasoning so far has eliminated three of the four PCPs (PCP1, PCP2 and PCP3) on the basis that they are not made out in fact. That leaves only PCP4.[139]In our judgment it is doubtful whether PCP4 can stand as a PCP for the purposes of the 2010 Act, s20(3). As the authorities (such as Ishola, cited above) explain, the reasonable adjustments jurisdiction is concerned with an ‘across-theboard’ rule or practice which causes substantial disadvantage to a disabled person as against others who are not disabled. PCP4 presents as a complaint about a ‘oneoff’ act of advising the Claimant that she would need to complete the ‘return-to-work programme’ at another practice.3 Is this a ‘one-off’ case in which (as illustrated in Ishola, paras 35-39) the evidence shows that, in comparable circumstances, the employer would have acted in substantially the same way? The Tribunal was not provided with evidence that the Respondents had, on any other occasion, found themselves in comparable circumstances, let alone that they had given similar advice to any other employee. Nor do we recall them being asked in crossexamination whether, had such circumstances arisen, another employee would have got the same response as the Claimant. Rather, the general tenor of her case seemed to be that she was singled out by the Respondents for unusual and unfair treatment. Accordingly, on the material before us, we are not persuaded that, even allowing for the need to read the statutory language broadly, a tenable PCP with the necessary ‘element of repetition about it’ is identified. ‘Substantial disadvantage’ and reasonable steps?[140]Moreover, even if we took a different view on PCP4, we would reject the Claimant’s case on reasonable adjustments as formulated in the LOI as incoherent and unsalvageable. One might extend the analysis a little further. Let it be assumed that we re-wrote PCP4, in favour of the Claimant, as, ‘the practice of not running RtP programmes internally’.4 We are unable to see how the agreed issues could ‘work’ even with a PCP so re-drawn. In the first place, none of the three instances of ‘substantial disadvantage’ relied upon (LOI, para 5.2) can be seen as resulting from the (re-drafted) PCP. All are concerned with the delay in getting the Claimant back to work and the consequences of such delay, but none link the delay to the PCP of not running a RtP programme within the Practice. Further and in any event, none of the adjustments contended for (LOI, para 5.5) can be seen as a step which it would have been reasonable to have to take to avoid any disadvantage attributable to the PCP. In particular, the (obvious) step of abolishing, or departing from, the practice of not running RtP programmes internally is not among the adjustments listed. 3 PCP1, PCP2 and PCP3 (already eliminated as unfounded in fact) suffer from the same defect in their focus on allegedly unfair treatment directed specifically at the Claimant, rather than on a system or way of operating of general application. 4 For the avoidance of doubt, we should not be taken to suggest that it would be proper or permissible to do so: the hypothesis is constructed for the sake of argument only. Failure to make reasonable adjustments – summary[141]For all of these reasons, we are satisfied that the complaint of failure to make reasonable adjustments, as formulated in the agreed list of issues, is unsustainable and largely misconceived. Three of the four PCPs are unfounded in fact. PCP4, although resting on a factual foundation, is (on the material presented) probably incapable of standing as a PCP at all. And even if that is wrong,(a) the requisite consequential ‘substantial disadvantage’ is not made out and(b) no potentially reasonable adjustment logically referable to PCP4 is identified. Victimisation Protected acts[142]The Claimant relied on two protected acts: the grievance of 11 September 2023 and the grievance appeal of 30 November 2023.[143]We find that both raised allegations of discrimination and amounted to protected acts for the purposes of the 2010 Act, s27(2)(d). Detriments?[144]Three detriments are asserted. Two can be addressed together:(a) failure investigate and consider the first-instance grievance in a fair and non-discriminatory manner; and(b) an identical allegation in relation to the grievance appeal (LOI, paras 7.2.1 and 7.2.3). Giving these formulations a generous reading, we find that the low bar of establishing detriments is cleared. The deficiencies at both stages impaired the fairness of the process and were, to that extent, detrimental to the Claimant.[145]The third alleged detriment (LOI, para 7.2.1) consists of Mr Harris threatening to remove the Claimant from the MPL following the raising of her grievance. On our primary findings, the detriment is not made out in fact. Detriment(s) done because the Claimant had done the protected act?[146]The two surviving complaints face the familiar difficulty afflicting victimisation claims based on an employer’s management of a grievance. Such claims arise necessarily in the context of the protected act, and, but for the protected act, the treatment complained of would not have occurred, but that is not to say that the protected act is the reason (or even a material reason) for the relevant detriment and common sense often argues that it is not. Here, the grievance process was the direct consequence protected acts. But we see no basis for thinking that, had the Claimant raised a grievance which did not attract the protection of the 2010 Act, s27 (say one that covered the same or similar ground save for making allegations of general unfairness rather than discrimination), she would have been any more favourably treated as a matter of process or outcome. In our view, the decisions at first instance and on appeal, however disappointing to the Claimant, were unremarkable and we do not see the flaws as pointing to some malign underlying motivation. In short, we see nothing to warrant an analysis elevating the ‘but for’ cause into the operating cause (or an operating cause) of the detrimental treatment. Victimisation - summary[147]The protected acts and two of the three detriments are made out but the claims fail because, on our findings, no detriment was done to the Claimant because she had done either protected act. Jurisdiction[148]For the reasons given above, we have concluded that the Claimant has made out one good claim under the 2010 Act, namely that under LOI, para 4.3.3. The remainder we have found unsubstantiated.[149]Of those claims under the 2010 Act which we have found unsubstantiated, many are resisted not only on their merits but also on the ground that they were brought out of time.[150]As we have recorded, the single valid discrimination claim arises from the Respondents’ action of writing to the Claimant on 22 March 2022 to invite her to a formal medical capability meeting. The claim form in which she sought for the first time to litigate that complaint was issued on 5 April 2024, more than two years later. Is the claim brought within time, or the extent to which it is out of time shortened, by the 2010 Act, s123(3)(a) on the basis that the treatment complained of forms part of a piece of ‘conduct extending over a period’? The inevitable answer is no. To state the obvious, the reference in the section to ‘conduct’ necessarily means unlawful conduct and we have found none besides the 22 March 2022 matter. Accordingly, s123(3)(a) will not assist the Claimant in relation to that part of her case or any other.[151]The Claimant’s fall-back argument is that the Tribunal should exercise its ‘just and equitable’ discretion (under the 2010 Act, s123(1)) to substitute a limitation period of about 21 months in place of the ‘default’ three-months period. She has had the benefit of trade union representation for all or most of the period of her dispute with the Respondents. She is an intelligent, articulate individual educated to a very high standard. She was on enquiry has to her rights throughout the period which we have scrutinised. It is certainly true that she has pressed internal remedies and looked for internal solutions before going to law. We bear that factor in mind. Nonetheless, the period of the delay in this case is, in our judgment, extreme, particularly when measured against a primary limitation period of three months. We also have regard to the policy underlying the limitation rules. The Employment Tribunal exists to deliver swift, practical, economical justice in employment disputes. Essential to that purpose is a system of narrow time limits for bringing claims. Extension of the primary time-limit is, indeed, the exception. If it were otherwise, it would be idle to speak of the three month period as representing the fundamental rule. It is for a claimant to show a good excuse for the failure to issue the claim within the primary period and to demonstrate that the period of extension required to bring the complaints within time is itself also reasonable. We are not persuaded that the Claimant makes out that case here. In particular, we do not think that it avails her to pray in aid the fact that she has brought numerous other claims. She has made a litany of unfounded complaints, many of a very serious kind, and greatly overcomplicated her case. It would not be right or fair for the Tribunal to treat her mistaken approach to the dispute as amounting to mitigation for the inordinate delay in bringing her one good discrimination claim. We also bear in mind the exceedingly modest nature of the victory which would be hers if we were persuaded to extend time. That, we think, is another factor which argues against exercising the discretion which she invokes. For all of these reasons, we dismiss the only valid claim under the 2010 Act on the jurisdictional ground that it was brought out of time. Unfair dismissal[152]We have reminded ourselves of our primary findings of fact and our secondary findings and conclusions in respect of the direct discrimination, harassment and victimisation claims. We will not repeat those here. Constructive dismissal?[153]The central contention on behalf of the Claimant was that defects in the grievance process were so serious as to amount to a repudiation of her contract of employment which she accepted by resigning. We regret that she and her legal team devoted an inordinate and quite disproportionate amount of time and energy to attacking the conduct and outcomes at both stages of the grievance procedure. We do not intend to make the same mistake. It is sufficient to say that, as Mr Katz acknowledged, there were errors and imperfections at both stages. Salient among these, we find, were the following.(1) At first instance: (a) Mr Harris’s prefatory remarks about how he saw his task (from which we have quoted above) did not inspire confidence, although we are satisfied that, on a fair reading of his report, he did understand that his function was to find facts on a balance of probabilities and measure the numerous complaints against his findings. (b) Mr Harris appeared to narrow his focus inappropriately in some respects, for example in seeming to concentrate on whether the Claimant’s return to work was ‘deliberately’ delayed or whether her alleged financial loss was attributable 'solely' to omissions on the part of the Respondents. (c) There were procedural flaws, such as the failure to read every document submitted (some, it seems, could not be opened) and in failing to exhibit the interview of Dr Dhall. (d) Some findings and/or conclusions were sparsely reasoned or explained. (e) There was some sloppiness of presentation.(2) At the appeal stage: (a) Mr Crouch expressed himself in somewhat odd terms on occasions, such as when he stated that he was not in a position to evaluate the Claimant’s ‘feeling’ that Mr Harris had not spoken to Dr Sukumaran. (b) Mr Crouch acknowledged that Mr Harris may not have read all the documents submitted by the Claimant, owing to difficulties in opening them, but did not make findings as to exactly what he had read. (c) Some findings and conclusions were sparsely reasoned and/or explained. (d) There was a degree of delay, in that the appeal outcome was delivered two months after the appeal meeting, although the interval spanned the Christmas and New Year holiday period.[154]As the authorities cited above show, the law implies into the contract of employment the right to access to a reasonable means of redress within a reasonable time. But it does not provide a right to a particular outcome. Nor does it entitle the employee to a flawless investigation or a decision reasoned to the standard expected of courts and tribunals charged with determining legal claims, as Mr Boyd surprisingly suggested (submissions, para 116). Applying the appropriate standard, we are satisfied that, however disappointing to the Claimant, the conduct and outcome of the grievance process entailed no breach, and certainly no repudiation, of her contract of employment. We find no basis for the suggestion of bad faith on the part of either decision-maker. Moreover, on our view of events, both arrived at the right outcomes in rejecting the most serious allegations (of bullying, harassment and discrimination).[155]Fortunately for the Claimant, she has a better route to establishing a constructive dismissal, which Mr Boyd gave little attention to but did not abandon. In our view, there was a plain repudiation of the contract of employment in the Respondents’ abandonment, as soon as the grievance was underway, of all efforts to get her back to work. Dr Diack’s report had advised that the Claimant was fit to return under a phased programme. She was a professional person who was becoming increasingly deskilled by her separation from medical practice She was subject to a disabling long-term health condition. She was suffering ongoing financial loss. There was no agreement to ‘park’ efforts to secure her return to work while the grievance was running. The problem of the RtP programme was not incapable of resolution. The ball was in the Respondents’ court and, although a solution would only be achievable with co-operation, it fell to them to take the initiative and move the conversation forward. We are satisfied that their inaction amounted, in the circumstances, to a breach of the implied duty to preserve mutual trust and confidence.[156]Did the Claimant affirm the contract as breached? Certainly, some time passed after the launch of the grievance (11 September 2023) before it became, or ought to have become, evident that, pending completion of the grievance procedure, the Respondents did not plan to take further action to secure her return to work. But, as we have noted, the authorities show that passage of time is not the key criterion. What matters is whether the innocent party has behaved in a manner inconsistent with an election to treat contract as discharged by breach. On this test, we find no affirmation. Throughout the grievance process she was pressing complaints on numerous matters, including what she saw as a culpable failure of the Respondents to secure her return to work. Objectively viewed, her conduct pointed to an intention to preserve the employment relationship.5[157]Even if we had seen the issue of affirmation otherwise, we would have upheld the complaint of unfair dismissal. On this analysis, we would have held that the defects in the grievance process constituted (collectively) a ‘last straw’ sufficient to revive the Claimant’s right to resign and treat herself as constructively dismissed. The ‘last straw’ combined with the original breach to precipitate the resignation. And a case based on the ‘last straw’ principle (not Mr Boyd’s primary line of attack but certainly not forsworn by him) is pleaded.[158]These alternative analyses lead to the same outcome: the Claimant was constructively dismissed.[159]The dismissal was unfair. As far as we are aware, Mr Katz did not contend that any constructive dismissal was fair. If he had done, we would have rejected the argument. The Respondents did not act reasonably (or within a reasonable range) in repudiating the Claimant’s contract of employment.[160]It follows that the complaint of unfair dismissal succeeds.[161]Mr Boyd argued (submissions, paras 127 (8.1) and 128) that, if the Tribunal upholds the complaint of unfair dismissal, we should find that the Claimant was also subjected to what he called an ‘automatic’ discriminatory constructive dismissal because many of the things which served to destroy trust and confidence were themselves tainted by discrimination. There are obvious and insuperable difficulties with this argument. It is sufficient to make three points. First, the LOI does not acknowledge a discriminatory dismissal claim, let alone identify under which statutory provision(s) it might fall. In short, the suggested claim is not one which the parties have agreed to litigate before us. Second and in any event, with one minor exception, the Tribunal has found the Claimant’s entire case under the 2010 Act to be without merit. Self-evidently, none of those failed claims is even theoretically capable of providing the necessary taint. Third, the single minor exception could not avail the Claimant because, as we find, there is no question of the invitation of 22 March 2022 to the first ‘capability meeting’ having been a material influence upon her decision to resign a little over two years later. Polkey/Chaggar and/or causation of loss[162]When we adjourned the hearing we directed the advocates to address questions of Polkey/Chaggar and/or causation of loss in their submissions. The hope was that, if any claim(s) succeeded and we could include in our judgment rulings on those matters, the parties would be well-placed to agree terms to dispose of all remedies issues. Having considered the submissions presented against our decision on the claims, we do not feel able to assist the parties as we envisaged. The submissions on this topic are sparse and treating them as representing the full 5 For the avoidance of doubt, we make no finding here about her subjective attitude and intentions, which may be explored at a remedies hearing in due course – as to which, see further below. cases on either side would risk serious injustice. Accordingly, all remedies issues (including Polkey/causation of loss) must be addressed at a remedies hearing, unless the parties can resolve them privately in the meantime.[163]In retrospect, we recognise that calling on the parties to address any remedies points in their submissions on liability may well have been asking too much in a case of this size and complexity, given the plethora of possible factual findings and outcomes on the numerous individual claims. Our decision to stand these matters over to the remedies hearing should not be seen as an implicit reproach to the parties or their representatives. Outcome and Postscript[164]For the reasons given, the unfair dismissal complaint succeeds but all other claims fail.[165]For the avoidance of doubt, we reached our decisions on the 2010 Act claims without applying the burden of proof provisions, being presented with the evidence we needed to reach findings. But had we applied those provisions, the result would have been the same. We would have found that no burden shifted and, in the alternative, that any shifted burden was discharged.[166]The parties would benefit from making an early and concerted effort to bring what is left of this unhappy conflict to an end through constructive and realistic negotiation. We make no apology for briefly noting a handful of obvious factors which argue in favour of settlement:(a) the scale of any remedy claim is much reduced by the dismissal of the 2010 Act complaints;(b) in light of (a), incurring further costs on a contested remedies hearing would look increasingly perilous and disproportionate;(c) issues of Polkey/causation of loss represent risks to both sides: the finding that the Respondents repudiated the contract of employment says nothing about (for example) whether (and if so, when and why) the Claimant had already decided to leave her employment in any event;(d) a remedies hearing might also entail a further costly dispute on the question of mitigation.[167]Failing private resolution, the parties are expected to prepare carefully to assist the judge on 10 November 2025 to manage the litigation forward to the best advantage of all concerned.