Mrs S Rokad v NHS North Central London Integrated ICB: 2219512/2024

EMPLOYMENT TRIBUNALS

Case No 2219512/2024

Between

Mrs S RokadClaimant

NHS North Central London Integrated ICB RECORD OF A HEARINGRespondent

Before

Employment Judge Joffe

Represented herself for claimant

Miss A Stroud (instructed by counsel) for respondent

Date 2 December 2025

JUDGMENT

[1]The claimant’s claim of constructive unfair dismissal is not upheld and is

[2]The claimant’s claims of direct disability discrimination are dismissed on withdrawal by the claimant.

[3]The claimant’s claims of unfavourable treatment because of something arising in consequence of disability are not upheld and are dismissed.

[4]The claimant’s claims of harassment related to disability are not upheld and are dismissed.

REASONS

[1]There was a list of issues which had been agreed between the parties at a point when the claimant was represented.

[2]At the outset of the hearing the claimant applied to amend the list / underlying claims to add to the constructive dismissal claim the following additional breach / matter contributing to breach of the implied term of trust and confidence: That the voluntary redundancy decision tree was unclear and it was unclear at what stage the managers were involved and how the managers were involved in the voluntary redundancy application decision.

[3]For reasons I gave orally at the hearing I did not allow that amendment.

[4]Late in the hearing, during cross examination of Mrs Lever, it became apparent that the claimant was not really advancing a direct disability discrimination case. On closer scrutiny, what she was complaining about probably fell under the head of reasonable adjustments – as she put it, she was complaining about the fact that she was treated as a normal person and not a disabled person.

[5]We had some discussion about the different types of discrimination. The claimant did not make an application to amend, which likely would have presented some difficulties at that late point in the proceedings, but she then withdrew the direct discrimination claims at the outset of her submissions. I have accordingly dismissed those claims. The resultant list of issues was as follows:

[1]TIME LIMITS1.1 Given the date the claim form was presented and the effect of early conciliation, any complaint about something that happened before 25 November 2023 may not have been brought in time.

1.2 Were the alleged discriminatory acts made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the act to which the complaint relates?

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

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

1.2.4 If not, were the claims made within such further period as the Tribunal thinks is just and equitable? The Tribunal will decide:

(a) Why were the complaints not made to the Tribunal in time?

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

[2]CONSTRUCTIVE UNFAIR DISMISSAL2.1 Did the Respondent do the following:2.1.1 Between September 2021 and 19 January 2024, required the Claimant to carry out increased work on behalf of the Respondent following the departure of colleagues who left employment or were off sick, but were not replaced. The Claimant relies on the following:

2.1.2 In January 2024, Suzanne Lever failed to address the Claimant’s

2.1.3 In January 2024, Suzanne Lever asked the Claimant to disclose conversations she was having with work colleagues who needed mental health support, which the Claimant considered private and confidential;

2.1.4 In January 2024, the Claimant being informed by her GP that she

2.1.5 In January 2024, Maninder Kaur informed the Claimant that she was not successful at the second-round voluntary redundancy scheme in breach of her confidentiality and without her consent;

2.1.6 In January 2024, Maninder Kaur spoke down to the Claimant, with the added suggestion that the Claimant had been neglecting her employment duties without proper justification;

2.1.7 On or around 14 December 2023 to January 2024, Mr Brady/HR failed to address the Claimant’s queries regarding the voluntary redundancy scheme it operated, or, in the alternative, to address those concerns in a timely manner;

2.1.8 On 31 January 2024, Suzanne Lever informed the Claimant that she would be subject to another ‘formal’ meeting which triggered the Claimant to recall the Respondent’s earlier decision in 2022 to place the Claimant into a formal ‘Stage 1’ process;

2.1.9 On 31 January 2024, Suzanne Lever said in a call to the Claimant that she had yet to look up the Absence Management Policy despite initiating the process under it to the Claimant;

2.1.10 On 31 January 2024, Suzanne Lever incorrectly stated to the Claimant during a call that was also subject to the formal ‘Stage 1’ process for long-term absence, when he case;

2.1.11 HR failed to address the concerns raised by the Claimant on 5 February 2024 by suggesting that the onus was on the Claimant to correct Suzanne Lever, rather than HR;

2.1.12 On or around February 2024, Mr Brady/HR decided to respond to queries regarding the voluntary redundancy scheme it operated but not the Claimant;

2.1.13 On 14 February 2024, Suzanne Lever lied to the Claimant when she said that she did not refer to a ‘formal’ meeting during the call on 31 January 2024;

2.1.14 Between 5 February 2024 to 14 February 2024, HR ignored and/or failed to do anything about the Claimant’s concerns regarding Suzanne Lever lying to the Claimant during the call on 31 January 2024.

2.1.15 Between 28 November 2023 and 24 January 2024, the failure of the Respondent/Voluntary Redundancy Panel to explain their decision making process in relation to the Claimant's application for Voluntary Redundancy.

2.1.16 Between 19 December 2023 and 24 January 2024, the failure of Respondent/Voluntary Redundancy Appeal Panel to explain their decision making process in relation to the Claimant's appeal for Voluntary Redundancy.

(a) SR – left September 2021 (not replaced).

(b) AZ – left March 2022 (not replaced). – left October 2023 (not replaced). (d) left January 2024 (not replaced), prior to this had been on intermittent long- absences. (e) absent from September 2023 until April 2024. (f) GK – left January 2024 (not replaced).

2.2 Did that breach the implied term of trust and confidence? Taking account of the actions or omissions alleged in the previous paragraph, individually and cumulatively, the Tribunal will need to decide:2.2.1 whether the Respondent had reasonable and proper cause for those actions or omissions, and if not

2.2.2 whether the Respondent behaved in a way that when viewed objectively was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the respondent.

2.3 Was the fundamental breach of contract a reason for the Claimant’s resignation?

2.4 Did the Claimant affirm the contract before resigning, by delay or otherwise? The Tribunal will need to decide whether the Claimant’s words or actions showed that she chose to keep the contract alive even after the breach.

[3]DISABILITY 3.1 Did the Claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about?3.1.1 The Claimant relies on:

(a) flat feet, causing mobility issues in her right leg;

(b) hypertension;

(d) liver disease.

3.1.2 The Respondent accepts that the above conditions amount to a disability under the Equality Act 2010, and that the Claimant had these disabilities at the relevant times.

3.1.3 The Respondent contends that it knew the Claimant was disabled by virtue of (a) Flat feet from August 2021; (b) Hypertension from February 2024; and (c) Pulmonary (lung) hypertension from February 2024.

3.1.4 The Respondent contends it did not know and could not have reasonably have been expected to know that the Claimant was disabled by virtue of liver dysfunction.

[4]DIRECT DISABILITY DISCRIMINATION (EQUALITY ACT 2010 SECTION 13)4.1 What are the facts in relation to the following allegations:4.1.1 The Respondent’s new absence policy in April 2022 required employees to take annual leave should they need to attend a medical appointment during working hours;

4.1.2 From around 27 September 2021 to 17 February 2022, the Claimant’s line manager, Suzanne Lever, pressured the Claimant to return to work despite a full sick note dated 19 August 2021 in fortnightly calls;

4.1.3 Between 1 February 2022 to 26 April 2022 Suzanne Lever ignoring the advice given on the OH Report, which she commissioned on the Claimant, and which recommended that the Claimant be left to recover for a period of 12 weeks;

4.1.4 On 17 February 2022, Suzanne Lever presented to the Claimant that a meeting on 6 April 2022 would be an informal ‘tick box’ exercise, when it was not;

4.1.5 In or around April 2022, the Respondent’s misapplication and/or decision to place the Claimant on a formal ‘Stage 1’ process whilst she was signed off work for health reasons, in breach of its own Absence Management Policy;

4.1.6 The Respondent’s failure to inform the Claimant or her Union

4.1.7 The Respondent’s handling of the formal ‘Stage 1’ process, including its failure to accurately minute what took place at the meeting of 6 April 2022;

4.1.8 Between September 2021 and 19 January 2024, the amount and/or the increased work that the Claimant was expected to carry out on behalf of the Respondent following the departure of colleagues who left employment or were off sick, but were not replaced (those listed at 2.1.1), and her personal circumstances;

4.1.9 In January 2024, Suzanne Lever failed to address the Claimant’s

4.1.10 In January 2024, the Claimant being informed by her GP that she

4.1.11 On 31 January 2024, Suzanne Lever informed the Claimant that she would be subject to another ‘formal’ meeting which triggered the Claimant to recall the Respondent’s earlier decision in 2022 to place the Claimant into a formal ‘Stage 1’ process;

4.1.12 On 31 January 2024, Suzanne Lever admitted to the Claimant that she had yet to look up the Absence Management Policy despite initiating the process under it to the Claimant;

4.1.13 On 31 January 2024, Suzanne Lever incorrectly stating to the Claimant during a call that as also subject to the formal ‘Stage 1’ process for long-term absence, when case.

4.2 Did the Claimant reasonably see the treatment as a detriment?

4.3 If so, has the Claimant proven facts from which the Tribunal could conclude that in any of those respects the Claimant was treated less favourably than someone in the same material circumstances was or would have been treated? 4.3.1 The Claimant says she was treated worse than a hypothetical comparator– save for:

(a) in relation to paragraphs 4.1.2, 4.1.5, and 4.1.8, she relies on and and

(b) in relation to paragraph 4.1.3, she relies on

4.4 If so, has the Claimant also proven facts from which the Tribunal could conclude that the less favourable treatment was because of disability?

4.5 If so, has the Respondent shown that there was no less favourable treatment because of disability?

[5]DISCRIMINATION ARISING FROM DISABILITY (EQUALITY ACT 2010 SECTION 15)5.1 Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date?

5.2 If so, did the Respondent treat the Claimant unfavourably in any of the following alleged respects:5.2.1 The Respondent’s new absence policy in April 2022 which required employees to take annual leave should they need to attend medical appointments during working hours;

5.2.2 From around 27 September 2021 to 17 February 2022, the Claimant’s line manager, Suzanne Lever, pressuring the Claimant to return to work despite a full sick note dated 19 August 2021 in fortnightly calls;

5.2.3 Between 1 February 2022 to 26 April 2022 Suzanne Lever ignoring the advice given on the OH Report, which she commissioned on the Claimant, and which recommended that the Claimant be left to recover for a period of 12 weeks;

5.2.4 On 17 February 2022, Suzanne Lever presenting to the Claimant that a meeting on 6 April 2022 would be an informal ‘tick box’ exercise, when it was not;

5.2.5 In or around April 2022, the Respondent’s misapplication and/or decision to place the Claimant on a formal ‘Stage 1’ process whilst she was signed off work for health reasons in breach of its own Absence Management Policy;

5.2.6 The Respondent’s failure to inform the Claimant or her Union

5.2.7 The Respondent’s handling of the formal ‘Stage 1’ process, including its failure to accurately minute what took place at the meeting of 6 April 2022;

5.2.8 Between September 2021 and 19 January 2024 the amount and/or the increased work that the Claimant was expected to carry out on behalf of the Respondent following the departure of colleagues who left employment or were off sick, but were not replaced (those listed at 2.1.1), and her personal circumstances;

5.2.9 In January 2024, Suzanne Lever failing to address the Claimant’s

5.2.10 In January 2024, the Claimant being informed by her GP that she

5.2.11 On 31 January 2024, Suzanne Lever informing the Claimant that she would be subject to another ‘formal’ meeting which triggered the Claimant to recall the Respondent’s earlier decision in 2022 to place the Claimant into a formal ‘Stage 1’ process;

5.2.12 On 31 January 2024, Suzanne Lever admitted to the Claimant that she had yet to look up the Absence Management Policy despite initiating the process under it to the Claimant;

5.2.13 On 31 January 2024, Suzanne Lever incorrectly stating to the Claimant during a call that was also subject to the formal ‘Stage 1’ process for long-term absence, when this was not the case.

5.3 Did the following things arise in consequence of the Claimant’s disability:5.3.1 The need to attend medical appointments (post flat foot operation, hypertension, and pulmonary lung hypertension);

5.3.2 The need for sufficient breaks during the working day to move around (including walking around) to avoid stiffness and circulation issues (flat foot);

5.3.3 The need to take regular painkillers and at times supplement with stronger painkillers to manage discomfort in her right leg (flat foot);

5.3.4 The need to recover from intensive surgical operation generally, but also due to the need to take strong medication which makes her drowsy (flat foot);

5.3.5 The need to take regular time off to avoid exacerbating anxiety and stress (hypertension).

5.4 Has the Claimant proven facts from which the Tribunal could conclude that the unfavourable treatment was because of any of those things?

5.5 If so, can the Respondent show that there was no unfavourable treatment because of something arising in consequence of disability?

5.6 If not, was the treatment a proportionate means of achieving a legitimate aim? The Respondent says that its aims were to manage the Claimant in accordance with the Respondent’s policies and procedures in place at the time.

5.7 The Tribunal will decide in particular:5.7.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

5.7.2 could something less discriminatory have been done instead;

5.7.3 how should the needs of the Claimant and the Respondent be balanced?

[6]HARASSMENT RELATED TO DISABILITY (EQUALITY ACT 2010 SECTION 26)6.1 Did the Respondent do the following alleged things:6.1.1 Implement a new absence policy in April 2022 which required employees to take annual leave should they need to attend a medical appointment during working hours;

6.1.2 From around 27 September 2021 to 17 February 2022, Suzanne Lever pressured the Claimant to return to work despite a full sick note dated 19 August 2021 in fortnightly calls;

6.1.3 Between 1 February 2022 to 26 April 2022 Suzanne Lever ignoring the advice given on the OH Report, which she commissioned on the Claimant, and which recommended that the Claimant be left to recover for a period of 12 weeks;

6.1.4 On 17 February 2022, Suzanne Lever presented to the Claimant that a meeting on 6 April 2022 would be an informal ‘tick box’ exercise, when it was not;

6.1.5 In or around April 2022, the Respondent’s misapplication and/or decision to place the Claimant on a formal ‘Stage 1’ process whilst she was signed off work for health reasons in breach of its own Absence Management Policy;

6.1.6 The Respondent’s failure to inform the Claimant or her Union

6.1.7 The Respondent’s handling of the formal ‘Stage 1’ process, including its

6.1.8 Between September 2021 and 19 January 2024, the amount and/or the Respondent following the departure of colleagues who left employment or were off sick, but were not replaced (those listed at 2.1.1), and her personal circumstances;

6.1.9 In January 2024 Suzanne Lever failed to address the Claimant’s

6.1.10 In January 2024, the Claimant being informed by her GP that she had

6.1.11 On 31 January 2024, Suzanne Lever informed the Claimant that she would be subject to another ‘formal’ meeting which triggered the Claimant to recall the Respondent’s earlier decision in 2022 to place the Claimant into a formal ‘Stage 1’ process;

6.1.12 On 31 January 2024, Suzanne Lever admitted to the Claimant that she had yet to look up the Absence Management Policy despite initiating the process under it to the Claimant;

6.1.13 On 31 January 2024, Suzanne Lever incorrectly stating to the Claimant during a call that was Rochelle Bye was also subject to the formal ‘Stage 1’ process for long-term absence, when this was not the case.

6.2 If so, was that unwanted conduct?

6.3 Was it related to the Claimant’s disability?

6.4 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? 6.5If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

The hearing

[7]I was initially provided with an electronic bundle running to 942 pages. The claimant raised concerns at the outset of the hearing as to some redactions which had been made by the respondent to the bundle. It appeared that the respondent had been seeking to redact the names of the two employees in respect of whom it pursued a Rule 49 privacy application and also some of the medical information about those employees but that in some cases the redactions had extended too far, even had those redactions been justified. Ultimately the issue was sorted out by the second day of the hearing when evidence commenced and I was provided with both an unredacted bundle and a supplementary bundle the claimant prepared, with the unredacted documents in it.

[8]I had a witness statement and heard evidence from the claimant. I also had a witness statement from the claimant’s husband, Mr A Rokad, but the respondent did not wish to cross examine Mr Rokad and he did not give oral evidence.

[9]For the respondent, I was provided with witness statements and heard oral evidence from: - Mrs M K Singh, head of medicines managemnet for Barnet borough; - Mr P Brady, head of people services; - Mrs S Lever, senior prescribing adviser.

[10]The claimant made an application for specific disclosure which I rejected for reasons I gave at the hearing. Respondent’s Rule 49 application

[11]The respondent made an application that two individuals should have their names anonymised. These were two other employees of the respondent. It was said by Miss Stroud at the outset of the hearing that there would be references to their health conditions. There was in fact very little said about these employees having health conditions during the hearing and no detail as to what the conditions are or were.

[12]The respondent had taken it upon itself to redact the bundle to anonymise the names of these employees without having made any application. That was clearly inappropriate and the claimant understandably objected to it.

[13]I allowed the respondent to make the Rule 49 application at the end of the hearing on the basis that the individuals themselves had not been asked for their views prior to the hearing. I was satisfied that whilst enquiries were being made, it was appropriate for the individuals to be referred to by a cypher.

[14]During submissions, Miss Stroud told me that both individuals had said they would like to be anonymised because they had serious and sensitive health conditions which they did not wish to be made public.

[15]In fact by this point there had been no reference to the nature of the individuals’ health conditions and I was taken to no documents which revealed those conditions. Miss Stroud relied on the risk that those conditions / documents might have been referred to which there was at the outset of the hearing.

[16]In the circumstances, it seemed to me that I had no evidence that there was anything in the documents I had been taken to or the evidence I had heard which engaged the right to privacy of these two individuals. There was accordingly nothing which would be mentioned in this Judgment which engaged that right.

[17]Having regard to the case law I summarise below, there was no basis on which I could make a Rule 49 order and the application is refused. All individuals are referred to in this Judgment by their names. Findings of fact Policies and procedures

Findings of fact

[18]I was provided with the respondent’s ‘Absence Management Policy and Procedure’.

[19]The section on medical and dental appointments was relevant: 6.2. Medical and Dental Appointments Staff are expected to make every effort to ensure that medical and dental appointments are made before or after the working day. Where this is not possible, it is expected that appointments will be arranged to minimise disruption to their work. Therefore, appointments should be made at the beginning or end of the normal working day, i.e. within the first or last working hour. Part-time staff and shift workers should try to schedule routine appointments for when they are not working. Where an employee has no alternative but to attend such appointments during working hours options available are flexibility in working hours, annual leave or unpaid leave. The line manager will work with the employee to come to a flexible agreement which supports the employee and the needs of the service. When the appointments become more frequent or the employee has a disability and is required to attend regular appointments (i.e. regular physiotherapy/ attending on-going treatment) the individual should advise their line manager in advance of the appointments. The manager shall consider reasonable adjustments to accommodate the disability related requirements including variation of working hours, flexible working hours or using a combination of unpaid and annual leave or paid time off to attend appointments.

[20]Mr Brady gave evidence about this policy. He said that staff were expected to try to minimise disruption to the working day. Where that was not possible, they should work with their managers to arrive at an agreement which supported the employee and business needs. He said he believed the policy was fair as it allowed flexibility for employees whilst ensuring that the respondent’s operational needs were met.

[21]There were also relevant provisions about long term sickness absence and absence review: 15. Management of Long-term Absence Long-term absence is classed as at least 28 calendar days’ or more continuous period of absence, usually due to a single health problem e.g. an operation or a combination of health issues. It is essential for employees who are off on Long Term Sick to meet regularly with their Line Manager and engage in sickness absence review Long Term Sickness will normally count towards trigger points (with the exception of maternity related absence) and would, in all cases, instigate an absence review meeting. However, Line Managers may use their discretion to issue a sanction, dependant on individual circumstances and where appropriate. In order to manage LTS effectively it is essential that the employee and the line manager maintain regular contact and meet periodically during the period of absence. An Occupational Health referral is advised in all LTS cases. On receipt of an OH report the manager and the employee should meet and discuss any advice/recommendations set out in the report. If the employee is unable to attend the workplace this meeting may take place at the employee’s home or at an alternative location. In some cases it may be necessary for the employee to be reviewed by OH at regular intervals throughout their period of absence for the manager to obtain continuing OH advice and guidance for the appropriate management of the case. It is expected that the employee will return to work in their substantive role and on their normal terms and conditions of work. 16. Formal Sickness Absence Review Meetings Line managers must conduct regular review meetings to discuss the situation with the member of staff and decide the appropriate application of the formal stages in conjunction with Human Resources. In cases of longterm absence the process outlined in section 15 will be followed. The process for dealing with sickness absence under this section will very much depend on the individual circumstances of the member of staff. In situations where there is an underlying health issue, a member of staff may have one or several sickness absence review meeting(s) before action is agreed and implemented. This will depend on the medical condition, the treatment, the long-term prognosis, and the sustainability of the absence after considering the effects on the department, comments made by the member of staff and Occupational Health advice. In some cases it may be necessary to move straight to the formal procedure. The Human Resources representative will be able to give guidance on this. At the review meeting the line manager will discuss the following with the member of staff:• Their underlying health condition;

• Occupational Health advice if this has been sought;

• Anticipated recovery progress;

• Whether they expect to be able to return to work in the foreseeable future;

• What type of support they feel they need on return to work. The line manager should discuss with the member of staff possible next steps/outcomes should the absence continue, taking into account the facilities and adjustments that should be considered by the ICB. Review meetings should be arranged taking into consideration the points outlined above and the individual’s sick pay entitlements. Where possible a review meeting will be held before the sick pay ends. In cases of long-term absence where there is a serious underlying health problem, it may be appropriate to immediately hold a final review hearing in line with the Formal Stage 3. This may occur, for example, where it is clear that progressing through each stage is not likely to assist in resolving the matter and redeployment, ill health/voluntary retirement or dismissal on the grounds of incapacity may be the only realistic option. 17. Ongoing Medical Conditions In some situations an employee may have ongoing health related problems which may impact upon their ability to perform the duties of their role. The employee may still be in work, or have long-term or short-term absence. This will be addressed by any or all of the following three steps:

a. Medical advice, support and guidance to help determine the best course of action for the individual

b. Reasonable Adjustments / redeployment – consider what adjustments can be made to the role including hours or lighter duties. Identify if there is any suitable alternative role the individual could undertake either on a permanent basis or Interim basis.

c. Final Review Panel- if the individual’s substantive post is not suitable due to their ill health and the above stages have been unsuccessful in supporting the employee to resume full duties, a final review hearing should be arranged in accordance with formal Stage 3 of the Capability Policy. Before any decision to terminate an employee on medical grounds the following must have been meaningfully considered:

• Rehabilitation;

• Phased return;

• A return to work with or without adjustments;

• Redeployment with or without adjustments.

[22]Appendix 1 was a table entitled ‘Procedure for managing sickness absence: an overview’ which set out various stages of an absence management procedure. The same procedure, which could give rise to formal warnings and ultimately dismissal, applied to both intermittent absences and long term absences. It seemed to me a fair criticism by the claimant that the relationship of Appendix 1 to the long term sickness provisions in the main body of the policy could have been better spelled out and that the terminology used was not always clear. It is also the case, however, that there are, within the section on long term ill health, clear references to a ‘formal procedure’ and stages of that procedure which can only be the procedure in Appendix 1.

[23]Mr Brady gave some evidence about this procedure in general terms. He said that the policy was to support staff and management and to support staff to return to work. It was not intended to be punitive but once the entire formal process had been exhausted and where efforts to support a return to work had failed, dismissal was a possible outcome.

[24]I saw the respondent’s grievance procedure, which included the following: 13. Informal Resolution Most grievance matters can be resolved quickly and informally through discussion between the individual and their manager. Any employee who wishes to express a grievance should first discuss the issue with their immediate line manager. This provides an opportunity for issues to be resolved without recourse to the formal procedure. If the individual feels unable to raise the issue with their line manager, they should speak to the line manager’s line manager within the Team/Directorate. Chronology

[25]The respondent is an NHS statutory organisation which coordinates activities across five London boroughs. The claimant is a pharmacist and had worked for the NHS throughout her career prior to her resignation.

[26]On 7 November 2005, the claimant commenced work for the respondent, latterly as a practice support pharmacist. During a restructure, practice support pharmacists ultimately became prescribing advisers.

[27]There were various changes to the way the work the claimant was employed to do was carried out although I did not hear detailed evidence as to precisely when some of these changes occurred. Amongst other changes, clinical pharmacists were employed by GP practices and primary care networks and new technology allowed GP practices’ systems to be accessed remotely.

[28]Prior to June 2020, Mr C Daff was responsible for the medicine management team in Barnet. Mrs Lever acted as his deputy. There were various practice support pharmacists working mainly in GP practices. Mrs Lever said she line managed these individuals together with Mr Daff; both set objectives and provided mentorship but Mr Daff was in charge of the pastoral side. In terms of the NHS grading system, Mrs Lever was a band 8b and the claimant a band 8a.

[29]The claimant and Mrs Lever had worked together for a number of years and Mrs Lever considered that they had a good close working relationship and she regarded the claimant as a friend and a colleague.

[30]In June 2020 Mr Daff retired from the role of Assistant Director of Medicines Management. Mrs Lever acted up in this role until December 2020.

[31]In May 2021, Mrs Singh joined the respondent as head of medicines management for Barnet, on a secondment basis. Mrs Singh line managed Mrs Lever. She worked three days a week and the claimant reported to the other band 8b, Mrs N Patel, on the days when Mrs Lever was not working.

[32]The line management structure thereafter was that Mrs Lever line managed the claimant and Mrs Singh line managed Mrs Lever. Mrs Lever was responsible for pastoral matters.

[33]Mrs Singh would be the claimant’s point of contact if both Mrs Lever and Mrs Patel were unavailable or there was a need for urgent support or the input of a more senior pharmacist was required.

[34]Mrs Singh gave evidence that when she joined the respondent, the team did not use their Outlook calendars a great deal and so she found it difficult to ascertain their whereabouts. This was true of the claimant as well as others. Mrs Singh encouraged greater use of Outlook calendars. The claimant’s impairments

[35]The respondent admitted that all of the claimant’s pleaded impairments were disabilities. The outstanding issues were as to knowledge in relation to hypertension, pulmonary hypertension and liver disease.

[36]The claimant provided information about all of her conditions in her impact statement. In respect of the hypertension and pulmonary hypertension, these were both diagnosed on 5 April 2018.

[37]Mrs Lever said that she believed that the claimant might have mentioned her blood pressure in passing during conversations whilst they worked together. She said that the claimant had not ‘raised it as a medical condition or issue that impacted her on a day-to day basis’. She said that the claimant had not connected her high blood pressure to her work until January 2024 when she said that stress at work was causing high blood pressure.

[38]Mrs Lever said that she was not aware of the claimant’s pulmonary hypertension but she was aware that the claimant had had a respiratory infection when she was absent recovering from her foot operation in December 2021. She was aware that the claimant had some kind of lung condition. She could not recall at all any discussions about the claimant having pulmonary hypertension. She knew the claimant was off with bad pneumonia in 2019. She said that she was also aware that the claimant did not work in Covid vaccination centres during the pandemic due to her lungs, but she was not aware of any specifics about the claimant’s lung condition. She was not sure she was aware that the claimant was shielding. She said that those members of staff who did not feel comfortable were not pressed to assist with vaccination.

[39]I note that the claimant’s notes of her discussion with Mrs Lever on 9 November 2021 contain a reference to pulmonary hypertension but the reference was not put to Mrs Lever.

[40]The claimant put to Mrs Lever that she had told her in June 2023 that she had hypertension and had been put on blood pressure tablets. Mrs Lever said that the claimant might have mentioned that; she was not sure and had no documents.

[41]The claimant’s evidence in her impact statement about her liver condition was that she started to have abdominal pain in around April / May 2022 lasting for days at a time. On 22 August 2022 her GP referred her for an abdominal ultrasound to check for gallstones. The claimant was diagnosed with gallstones on 3 October 2022. She declined an operation to remove the gallstones. Her abdominal pain worsened and she found sitting uncomfortable. She returned to the GP on 31 July 2023 as she felt the pain was becoming unbearable. She had further tests on 1 August 2023 and was referred for ultrasound and to see a hepatologist. On 5 September 2023, the claimant was told she had gallstones, moderate fatty liver and two abdominal umbilical hernias. She had appointments for further investigation on 11, 13, 19 and 22 September 2023 and a fibroscan appointment on 12 September 2023. She did not have a follow up hepatology appointment until 28 March 2024.

[42]So far as the claimant’s liver condition was concerned, Mrs Lever was aware that the claimant was having some tests as she requested time to attend appointments, She said that the claimant did not inform her of any diagnosis and or that she needed any support or adjustments. She said that the claimant also made her aware that she sometimes had abdominal pain and she asked the claimant to let her know if she was not well enough to work. In Mrs Lever’s notes of her one to ones with the claimant there was a reference on 31 August 2023 as follows: Gall stones playing up - historical issue - called to see if she was ok after she sent an email saying she should not be in work this week. 'I have been suffering from abdominal pain for the past few days and have been referred for further investigations.' She is modifying her diet and waiting to see if she can have surgery She said she was ok to work at the moment and I asked her to contact me if she did not feel well enough to work.

[43]There was an earlier reference to a discussion on 9 August 2023: When discussing queries, Shobhna was tearful again telling me how much pressure she was under and that she has pain and I suggested she leave the call and I would pick this up with her at a later date but she wanted to continue and then was fine. I emphasised that she should let me know if she is not well enough to work.

[44]There were some entries from September 2023 (all spellings from original): Dear Suzanne, I have been to a specialist yesterday, and he urgently wants to do a few tests next week: CT scan on 19th Sept about 1pm and Gastroscopy on 22nd September about 1pm. So, I was proposing to take an additional 2x half days annual leave next week and split it into 2 hours on Tuesday and (3.75hours +1.75 hours) for Friday Is this ok, otherwise will take additional half day on Tuesday and 1x full day Friday. Called shobhna to discuss on 12th spet She will work 8.30-10.15 on Tuesday ( 1 hr 45 min) She will work 8.30- 10.30 on Friday ( 2 hours) She will take 3 x half days to cover the rest of 19th and 22nf sept I asked her to make any generic box changes required with Gita and checked no meetings need to be covered She will make changes clear in calender 14th Sept Husband called to say she is sick with abdo pain - ill today Dr Tang - gastritis ? Tests next week

[45]The claimant said that she must have mentioned the gallstones in 2022 when she was diagnosed as there was an option to have an operation and she told Mrs Lever she was not going to do that. She did not give any clear evidence that she told Mrs Lever what her liver condition was.

[46]Mrs Singh in chief said that she was not aware of the claimant’s diagnosis of hypertension. Shortly after she joined the respondent, she had a conversation with the claimant where the claimant mentioned in passing that she had pulmonary hypertension. Mrs Singh asked the claimant if she needed any support with this from the respondent and said that Mrs Lever would be able to follow that up. The claimant said that she did not require support and that she was in the process of undergoing medical tests. In that conversation, the claimant told Mrs Singh that she had a general liver condition as a result of which she was monitoring her diet. She said that she did not require support from Mrs Lever. The claimant said she told Mrs Singh she had fatty liver.

[47]Mrs Singh said that she would not have been aware when the claimant was attending medical appointments.

[48]Returning to the chronology more generally, on 19 August 2021, the claimant had a foot operation to correct her flat foot and was ultimately absent until 25 May 2022. She told Mrs Lever that she would be off for at least 12 weeks to recover from this serious operation and she had a medical certificate to cover that recovery period.

[49]The claimant’s evidence was that some time in July 2021, in the run up to the claimant’s operation, Ms Lever said, ‘I know you will get bored and ask for work to do’. This was part of what the claimant said she felt was pressure to return to work. It was put to her that this remark was not the same as asking her to do work. The claimant did not accept it could have been a light-hearted or affectionate comment. Mrs Lever did not recall saying this and did not believe she would have said it.

[50]Whilst the claimant was absent from work, Mrs Lever conducted catch up meetings with her. Prior to the claimant’s leave they had agreed that Mrs Lever would seek to keep in touch with the claimant on a regular basis to check in and for Mrs Lever to provide any support she could.

[51]Mrs Lever said that during the claimant’s absence she sought to call her on a fortnightly basis to ask how she was and how her recovery was going. I saw some entries which she had made in her One Note software. She had cut and pasted relevant entries and emails into several electronic documents and the result was not always entirely chronological. These started in November 2021.

[52]She said she made a note of earlier calls in notebooks which she had not retained. She had not retained them as they had been made in 2021 / 2022 and she had not believed there were any ongoing issues arising from these matters. She also sent some WhatsApp messages. She said that these catch ups were part of the absence management policy process.

[53]Mrs Lever said that she did not understand what she said or did which could be construed as putting pressure on the claimant to return to work. She said that she did ask what she or the respondent could do to help facilitate the claimant’s return to work by way of reasonable adjustments when she was fit to return. She sought to sympathise with the claimant as she did not seem happy and she knew that the claimant enjoyed her work, so she said that they missed her and wanted her back at work. This was to make her feel valued and missed not to pressure her to return to work.

[54]Mrs Lever said that she considered that she was acting in accordance with the Absence Management Policy which required line managers to meet regularly with employees who were on long term sickness absence to engage in sickness absence review meetings. The claimant had agreed to these meetings.

[55]Mrs Singh’s evidence was that she only became involved when Mrs Lever was on leave or on a non working day to see if the claimant wanted to have a call and/or to relay organisational updates. She had monthly one-to-ones with Mrs Lever at which she would receive updates about the claimant.

[56]The claimant agreed that there were regular catch ups. She said that she dreaded the fortnightly catch ups as there seemed to be an agenda to get her back to work and she got anxious and stressed.

[57]The claimant’s operation had been complex and her recovery was slower than expected. She was largely immobile and confined to her bed for a significant period. She said very frankly that she was feeling very desperate and her mind wandered in terms of what had happened to her and how she got to that situation. She felt helpless and accepted she was brooding.

[58]The claimant had provided handwritten notes of some of these calls. She said that she took the notes contemporaneously whilst they were speaking. This was a general habit of hers. She was lying in bed with her notebook in her hand and her mobile phone in a stand. She said she wrote down these calls as a colleague who had been off sick for a year had advised her to make notes of the catch up calls.

[59]On 14 September 2021, the claimant made notes of a discussion she had on the phone with Mrs Singh. The claimant explained her ongoing issues and Mrs Singh said ‘not to worry about work’. The claimant said that Mrs Singh inexplicably asked for a photo of her foot, which she sent. That was not put to Mrs Singh.

[60]There were text messages between Mrs Lever and the claimant on 15 September 2021 in which Mrs Lever asked the claimant how she was and said that she hoped she was recovering well. The claimant replied that things were pretty tough and explained her condition / mobility issues.

[61]On 4 October 2021, the claimant kept notes of a call from Mrs Lever. She recounted her difficulties. She recorded Mrs Lever as saying ‘HR wants to refer you to OH’ and ‘ you know what Maninder is like’. The claimant recorded herself as saying ‘Love to work, worried about work imposed on my colleagues’ She recorded in an asterisked sentence at the end of the notes: ‘SL said thought you might be bored at home so could do some work’. She said that she wrote that afterwards within half an hour of the call and put an asterisk as she thought it might be important. She did not accept in cross examination that it could have been a light-hearted remark. She described it as ‘a bit coercive’. She did not complain at the time; she said that she had never complained about a manager.

[62]Mrs Lever did not accept that she said that the claimant might be bored at home.

[63]On 9 November 2021, the claimant’s notes include: She had not referred me to OH as thought would be back next week 19/11/2021 Said team missed me and I said vice versa

[64]Mrs Lever’s notes say: I spoke to Shobhna today to see how she was – she is still in pain and was emotional I confirmed she was happy with OH referral – I wrote to her about this last week and she is waiting for the referral ( which I am just working out how to do!) Her Sick note runs out next week – Shobhna told me she is still mainly bed bound but is doing physio exercises Shobhna spoke to her physio who has said she can not come back to work as she can not weight bear She will see her Gp next week but she thinks she may be signed off for a further two months according to physio

[65]Mrs Lever denied that she had said she delayed the OH report for the reason recorded in the claimant’s notes or that she was expecting the claimant back the following week.

[66]In respect of the occupational health referral, Mrs Lever said that she had not managed anyone on long term leave before and she did not realise she should make an OH referral until she was prompted by HR to do so in October 2021. Subsequently the referral was delayed because the claimant had a chest infection in December and Mrs Lever experienced technical issues logging into the relevant IT system.

[67]Mrs Lever observed that in her notes of a subsequent meeting on 5 January 2022, they talked about the claimant coming back to work slowly but then agreed to wait to see what her physiotherapist said. At a meeting in January 2022, she reminded the claimant that if she did come back to work, she would not be expected to travel and could work remotely.

[68]The claimant’s notes of that date record: ‘We like you to be back @ work’ and ‘Said the team missing her and wanted me back @ work and I said ditto.’

[69]Mrs Lever said that she could not recall if she had said this but it would have been in the context of trying to support the claimant and make her feel valued and she believed that the claimant knew this. The claimant did not raise any concerns about feeling pressure to return.

[70]The claimant recorded Mrs Lever as having said ‘the wound is all healed’ and the claimant explaining that her wounds were not all healed. The claimant did not accept that the remark about the wounds could have been a question and that she might in her notes have misrepresented what Mrs Lever said and how she said it.

[71]Meanwhile on 19 January 2022, Mrs Lever was able to make an OH referral.

[72]The claimant said that she was told by the OH adviser during her appointment that she was going to say that the claimant needed to be left alone to recover for twelve weeks. The claimant said that she understood that the adviser was going to tell management she should be left alone.

[73]The OH report was prepared on 1 February 2022. It said, amongst other things: At the appointment today Shobhna was almost uncontrollably upset. She appears to have been traumatized by a combination of enforced postsurgery immobilization, an inability to bear weight through her foot, having to mobilize using a walking aid, severe pain, interrupted sleep and fear regarding the future, including the potential for Covid-19. Two well-validated mental health assessment tools were used, and Schobha [sic] scored highly for stress. The surgery she underwent involves surgically breaking the heel bone and inserting screws and plates inside the foot. Usually, a person is advised to avoid weightbearing for about 12 weeks, then to increase weightbearing whilst wearing a protective boot. However, everyone responds differently. It is not known why Shobhna is not yet able to weight bear but reasons may include having had extensive surgery to the tendons of the foot, as I believe is her case. She seems well supported with physiotherapy and I have additionally suggested the use of hydrotherapy. We discussed what coping mechanism she has and she is able to utilize a relaxing meditation plus the support from family members and a friend. I advised Shobhna to contact her GP to request support for how she is feeling, and she told me that she intends to do this. She is almost certainly going to require a phased return to work but it is too soon to state what that might look like. Over the next 12 weeks I would expect her pain to reduce and her ability to bear weight through her foot to improve, along with her gait, although progress may be slow, given the symptoms she described today. Management advice Shobhna is not currently fit to return to. She reported minimal physical capability in relation to her current contracted role. I would not expect her to return within the next 12 weeks. However, following recovery and with ongoing management, it is unlikely that Shobhna’s symptoms would exacerbate in the future. As you know, she is accessing NHS treatment which will assist in achieving a return to work. I would be happy to review her closer to her return date, even if this is a phased return, such as a few hours per day initially.

[74]Mrs Lever said that when she read the OH report, she was concerned about the claimant and sought support from HR. She followed HR advice which was to arrange a long term sickness absence meeting. Neither she nor HR interpreted the report as saying that the claimant should not be contacted. Mrs Lever said she continued to check in with the claimant fortnightly and the claimant did not object to that.

[75]On 17 February 2022, Mrs Lever had a call with the claimant. She said that the call started well but when she informed the claimant that she would be inviting her to attend a formal meeting with herself and HR, the claimant got upset. She sought to defuse the situation and explain things. The claimant did not seem to be listening and put the phone down on her. Mrs Lever made a note of the meeting, contacted HR for advice and told Mrs Singh what had happened.

[76]Mrs Lever said in her witness statement: Mrs Rokad has said in her claim that during the call I presented the meeting as an “informal tick box exercise”. Whilst I do not recall my precise words at that meeting, I believe it was clear from what I said that it was a formal meeting although I did seek to reassure her that it was to support her in accordance with the Policy as she had been off sick and that it was nothing to worry about with regard to her ongoing employment. However, I’m not sure whether she had listened to what I was saying as she was upset.

[77]The claimant’s evidence about what was said was that Mrs Lever said the meeting was a ‘tick box exercise’ and that the ‘HR lady was very sweet and nice’. The claimant said that she asked if she needed a union rep and said it looked more like a disciplinary. She said in cross examination that she probably didn’t take in much after that, she couldn’t take it and couldn’t believe this was being done to her. She did not believe it would just be a tick box exercise. She said that none of this made sense given the OH report, which the claimant herself had not yet seen. The claimant said that Mrs Lever did not say it was going to be a formal meeting; she did not say it was either formal or informal.

[79]The claimant accepted she was very upset - ‘crying uncontrollably’ - but denied shouting. She did put the phone down.

[80]The claimant accepted in cross examination that in the respondent’s policy absence review meetings were required irrespective of OH advice and that long term sickness triggered absence review meetings. She said that the policy was confusing and that there was no reference to the appendix setting out the staged procedure in the section about long term absence.

[81]The claimant’s objection and what seemed to upset her during the phone call was the reference to the involvement of HR.

[82]The claimant did not make a note of this discussion.

[83]In terms of her relationship with Mrs Lever, the claimant accepted she had had complete trust in Mrs Lever before this occasion but said that she started getting wary of her after her operation and this episode.

[84]On 18 February 2022, the claimant sent an email to Mrs Lever: Thank you for your phone call yesterday afternoon. Further to our telephone conversation, I understand you want to arrange a formal meeting with me, HR and yourself. Please can I direct you to the Occupational Health report, following my assessment on 1/2/22. I would be grateful if you could send me a copy of this report by the physiotherapist, Jane. Jane advised that I should be left to continue my recovery for the next 12 weeks. She further advised that management was only to call to see how I am recovering, but not discuss any matters related to my job. Under her advice, I referred myself to IAPT. I have copied in Kim Sharp, my Unison representative.

[85]The claimant said in evidence that her reference to a ‘formal meeting’ was a ‘typo’ and that Mrs Lever had not said it would be a formal meeting. The claimant said that she should have had an informal meeting to discuss the OH report prior to any formal meeting.

[86]Mrs Lever consulted with Ms Belavadi about what email to send back and wrote on 1 March 2022: I hope that you are well Thank you for your email I am enclosing the report from Occupational health (OH) along with a copy of the NCL absence policy Please may I reassure you that the formal meeting with HR that we discussed is first and foremost to check on your progress and take into consideration any reasonable adjustments that need to be made when you return to work. The formal process outlined in the policy is a means for the CCG to have a consistent approach at managing staff who are on long-term sickness. You are able to bring a colleague or union representative with you to formal I will be contacting you to check how you are recovering over the next weeks. However, closer to the time that you are due to return to work, it may be helpful for you to undergo another occupational health referral to ensure that your progress is on track and to enable you to consider any OH advice or recommendations on any reasonable adjustments that could be put in place to facilitate your return her to work when you are ready for this. We have been advised that you are required to send a sick note for the period from 28th February 2022 I am on annual leave from 2nd March until March 15th. Please contact Nisha if you require any assistance whilst I am away With best wishes for your continued recovery.

[87]The claimant said in evidence that she sent this on to her union representative.

[88]On 22 March 2022, Mrs Lever invited the claimant to a long term absence review meeting: Re: Invite to Long Term Sickness Absence I write to invite you to a Long Term Sickness Absence meeting to be convened in line with the Absence Management Policy as your sickness absence has reached four week or more. The purpose of this meeting will be to discuss your sickness absence as detailed above and to explore any help or advice we may be able to provide for a return to work in conjunction with (if appropriate) Occupational Health advice. Sneha Belavadi, Senior HR Advisor will also be in attendance in an advisory capacity. At the meeting you may if you wish be accompanied by a trade union representative or a colleague not acting in a professional capacity. Please note it is your responsibility to arrange this. If you are being accompanied please inform me of the name of your companion no later than April 4th 2022. Please advise me if you or your companion have any particular requirements to facilitate your attendance to the meeting.

[89]Mrs Lever said that, whilst the letter did not make reference to the meeting being a ‘Stage 1’ meeting in accordance with the respondent’s procedure, it should have been clear from previous discussions and correspondence that it was a formal meeting. Mrs Lever said that she believed she should have arranged a formal meeting sooner under the respondent’s policy.

[90]The meeting was held on 6 April 2022. Mrs Lever made her own notes of the meeting. The claimant also took notes which I was provided with. Part of the claimant’s notes recorded: L-advised formal stage one meeting, accordance to CCG Absence Policy, discussing SR progress on recovery, what support CCG can provide on well being. KS-asked at this point, when was this now a stage 1 to SB. Since SL had been on regular contact with SR since the op. KS asked what makes this then a formal stage one meeting?

[91]‘KS’ is the claimant’s trade union representative, Kim Sharp.

[92]The notes show that there was a discussion about whether stage 2 was going to be implemented and Mrs Belavadi said that the meeting was not in any way disciplinary. The meeting was to check how the claimant was doing and what the respondent could do to support her. Mrs Lever said that the cliamant’s recovery was the main thing but also that the team did miss her at work as she had been a valuable member of the team for many years.

[93]Mrs Belavadi said that the claimant would be referred to OH and there would be informal contact meetings / calls to check how she was. The claimant was asked to inform Mrs Lever if there was anything else the respondent could do to support her.

[94]Mrs Lever’s notes record: SL explained the purpose of the meeting was to• Review SR’s health and recovery since her operation August 2021

• Check to see if there is any wellbeing support the CCG can provide to SR during long term sickness

• Discuss annual leave carry over for 21/22

• Discuss organisational changes

• Answer any questions

[95]It appears from these notes that Ms Sharp asked what ‘improvement health targets’ there would be following the meeting. Ms Belavadi confirmed there would be no targets and that the stage ‘would be considered an elongated stage 1’.

[96]On 12 April 2022:, the claimant was sent an outcome letter including the following text: Return to Work You shared that your commitment to return to work remains high. You advised during the meeting that you found the last Occupational Health (OH) referral on 1 February 2022 to be helpful and I will make another referral to OH as agreed in the meeting and in line with the recommendation in the last OH report of having another assessment by the OH physiotherapist in mid-April 2022. As clarified in the meeting, there are no improvement health targets following this meeting, however, I will continue to keep in touch with you via meetings and telephone calls to check on your health and process. Agreed Next Steps:  Suzanne Lever(SL) to re-refer Shobhna Rokad (SR) to Occupational Health (OH)  SL and SR to have meeting following OH review  SL and SR to have regular meetings as these were helpful for SR  SR to inform SL if the CCG can provide her with wellbeing support in addition to the resources listed below

[97]The claimant said in evidence that as she was on stage 1 she considered that she had a disciplinary notification on her record. This was something she was very upset about. She looked at Appendix 1 which made provision for a written warning at stage 1 (potentially). She said that she was intimidated and scared. She thought she was getting a written warning on her record.

[98]The claimant said that the outcome letter was inaccurate as it did not refer to the claimant and her rep querying the status of the meeting and raising the fact that she had not been notified in advance that it was a stage 1 meeting. In cross examination she said it was more that it was incomplete than that it was inaccurate.

[99]On 18 April 2022, the claimant emailed Mrs Singh saying that she wanted the stage 1 removed from her record.

[100]On 24 April 2022, the claimant emailed Mrs Lever with number of queries about the process. She said that it had not been made clear prior to the meeting that it was a formal stage 1 meeting and that she and her representative had been unprepared. She asked some detailed questions about the process which had been followed.

[101]On 26 April 2022, Mrs Lever wrote to the claimant to say she had sent the queries to Ms Belavadi. On 18 May 2022, the claimant chased up Ms Belavadi

[102]On 26 May 2022, Ms Belavadi responded to the claimant, apologising for the delay. She said inter alia, responding to questions the claimant had posed: Can you explain why my case has been turned into a formal one and tell me the date took place? Under Clause 15 of the Absence Management policy, long-term sickness is classed as at least 28 calendar days’ or more of continuous absence. On 9th February, I advised your line manager that we should meet formally for a sickness absence review meeting, because as at 9th February, you had been off for more than 28 calendar days. This advice was provided under Clause 15 of the policy which states that “It is essential for employees who are off on Long Term Sick to meet regularly with their Line Manager and engage in sickness absence review meetings.” 2. Can you explain to me why it has been turned into a formal meeting without telling me or my Union representative prior to the meeting? I thought I would have to have notice of this if it was going to be made formal? Our formal meeting took place on the 6th April 2022. I believe Suzanne informed you verbally via phone call that this would be a formal meeting on the 17th February 2022. This was then acknowledged by you via e-mail on the 18th February 2022 (see attached e-mail). Your e-mail to Suzanne states that you understood that she wanted to arrange a formal meeting with you with HR present. I note that Kim Sharp, your union representative was also copied into this e-mail which indicates that you were aware that this was a formal meeting. I can appreciate however that the letter that you received on the 22nd March 2022 did not explicitly state that this was a formal meeting, which was an oversight on our part that I apologise for.

[103]On 25 May 2022, the claimant returned to work on a phased return. Mrs Singh said that the claimant did not suggest to her that she had felt pressured to return to work or that she was dissatisfied or overwhelmed when she returned to work. Treatment of other employees on sick leave

[104]Ms R Bye was a practice support pharmacist managed by Mrs Lever. Ms Bye had significant periods of sickness absence from December 2022 to September 2023 and November 2023 to February 2024 due to health conditions. Mrs Lever said she managed Ms Bye’s absence in the same way she managed the claimant’s. She had a formal long-term sickness absence meeting with Ms Bye in August 2023. During Ms Bye’s second period of long term absence she contacted HR in January 2024 about arranging an OH referral and/or a further sickness absence meeting.

[105]Mrs Lever was not responsible for managing the sickness absence of Ms S Wong, the other employee the claimant compared her treatment in this respect to. The claimant ultimately did not pursue her claims of direct discrimination so this evidence became less significant.

[106]On 30 November 2022, there was a note of a one to one with the claimant in Mrs Lever’s notes which said Emergency please help - 3 way conversation Surprised at panic Shobhna contacted Katie Distributed - Should not panic - read email and think first and think what she can do before ask for help Fine to bounce off ideas other people are you unsure

[107]The claimant put to Mrs Lever that this showed the claimant panicking about work. Mrs Lever said she thought it was about a specific query.

[108]On 1 February 2023, the respondent commenced an organisational change programme.

[109]In August 2023, there were some interchanges about difficulties covering the generic inbox. Mrs Patel seems to have resolved the issue for the time: Please pul Suzanne Wong off the generic inbox rota from next week. Suzanne L and I will provide an additional half day cover to support you. We are proposing the following, but we may need support from Gita and yourself with queries if there are competing priorities: Mon Shobhna Tue SL (am)/GK (pm) Wed NP(am)/SL (pm) Thurs NP (am)/SR (pm) Fri Gita Please can I leave it with you to arrange generic inbox rota for the coming weeks and share with the team.

[110]On 28 September 2023, there was an all staff webinar briefing to inform staff of the outcome of the formal consultation process regarding the reorganisation and advise on next steps.

[111]The reorganisation included an aim of reducing staff headcount by 30% to comply with the budget set by NHS England. There was a voluntary redundancy scheme to reduce the number of compulsory redundancies. Mr Brady said that as well as losing staff there were discussions about how they could work more efficiently. There was an acceptance that some work would have to be stopped or could be automated, digitised or done differently. He said that there was no expectation that the remaining staff would take on the work of the departing staff.

[112]Mr Brady’s role was to help coordinate the voluntary redundancy scheme and he also sat on a local voluntary redundancy (‘VR’) panel. 113. 30 October 2023 – 10 November 2023 was the staff window to apply for voluntary redundancy. The affected staff were provided with an FAQs document.

[114]There was eligibility screening. Staff applying had to have two years continuous service and be at-risk or in a ring-fence pool as well as not being on notice of resignation, dismissal or retirement.

[115]A local VR panel scored the applications, first for eligibility and then against selection criteria: Applications are assessed against the two overarching selection criteria:a. Whether or not the loss of the role would mitigate against Compulsory Redundancy (CR).

b. Impact of any loss to business continuity.

[116]In respect of the second criterion, there was further guidance:• The impact of the loss of the knowledge, skills, organisational intelligence/corporate knowledge and experience of the individual concerned.

• Whether there will be adequate skill mix as part of proposed organisational design to allow a service to continue to be provided.

• Number of applicants received from within any one function should not represent a risk to business continuity.

• Financial affordability will remain paramount and may form part of the decision-making process

[117]After scoring the applications, the local panel was required to make recommendations to the ICB wide panel which was required to review the recommendations for consistency, impact on diversity and affordability.

[118]On 31 October 2023, the claimant applied for voluntary redundancy.

[119]On 28 November 2023, the claimant was informed that she was not successful for voluntary redundancy selection. She was informed that whilst she scored 100 points under the criterion ‘whether or not the loss of the role would mitigate against compulsory redundancy’, she had scored zero in relation to ‘impact of any loss to business continuity’. The brief supporting rationale provided was: ‘applicant skills and experience are critical to business delivery at this time.’

[120]The claimant said that she spoke with Mrs Singh after she received the outcome. She said that Mrs Singh told her that she, Mrs Singh, had not been approached by the VR panel to have any input.

[121]Mr Brady was asked about how the panel assessed candidates against the criteria without line manager input. He said that Ms McDonnell-Davies had knowledge of the roles and the workstreams from her direct reports and from performance reports from the performance team.

[122]On 1 December 2023, the claimant submitted an appeal against the voluntary redundancy outcome.. Mrs Singh offered to help her with her appeal. She had helped Ms Bye with her appeal. The claimant did not wish to have Mrs Singh’s assistance.

[123]On 12 December 2023, the claimant was informed her appeal was unsuccessful. She received feedback: As requested, I am able to provide you with summary feedback from the local VR panel concerning your VR appeal. The Panel were able to approve 2 VR applications from the 5 applications received for position pool 51 in accordance with the scheme guidance. In determining the recommendations for VR applications to approve, the local panel considered the assessment criteria outlined in the decision guidance and in this regard, consideration of existing skills and experience. The panel in their determination needed to balance these factors with local knowledge and overall cost but this did not drive the recommendations. The panel exercised it right to make decisions to ensure that there will be a continuity of service The panel can conﬁrm that if we were to receive a withdrawn application, then previous applications would be re-considered. The appeal panel are not aware of any approved applications not being progressed.

[124]On 14 December 2023, the claimant wrote to Mr Mitchell, a member of the VR appeal panel, asking a number of questions about the VR process. She asked for a response by 20 December 2023. One of the queries the claimant and was as to the role managers had played in providing information for the selection process.

[125]On 15 December 2023, Mr Mitchell wrote to the claimant saying her questions had been forwarded to Mr Brady to liaise with the original VR panel to get answers to her questions.

[126]On 19 December 2023, Mr Brady provided answers to at least some of the claimant’s questions. The claimant wrote back on 21 December 2023 with further detailed questions:a. You refer to there being 5 applicants – from which boroughs other than Barnet were these applicants from? I am aware that 2 x 8A pharmacists applied from the Haringey borough. Can you advise?

b. Are you able to provide information as to whether the applicants in my ‘pool’ included Barnet and non-Barnet applications (i.e. the Haringey and Barnet pool were put together), or they were dealt with separately?

c. You say that the Panel balanced factors with “local knowledge”, so it was a factor in their recommendations but what exactly is being referred to here? Were managers/Heads of Borough MMT consulted? Were HR records checked?

d. You refer to the fact that the Panel considered “existing skills and experience”. Can you let me know how my skills and experienced differed from those who were selected for VR, and those who were unsuccessful?

e. What did “drive the recommendations” as per your email below?

f. How did the Panel consider that “continuity of service” would be maintained if the successful applicants were given VR and I was not? What speciﬁcally did the Panel consider that I brought to the table which others did not to ensure this continuity.

g. Can you provide me with the scores that the successful applicants get – speciﬁcally, I am aware that a successful applicant, Gita Karia, received a score of 10. What score did another successful applicant (Isaac Quarm) achieve? Why was I and Rochelle Bye given a ‘0’?

h. At a meeting on 25 July 2023 (regarding the 8A Job Description Roles), Isaac Quarm advised that he could not comment upon this as he was doing such highly skilled work that he was being considered by management as needing to be upgraded to the role of an 8b pharmacist. Can you conﬁrm this and if this is correct, why was he given VR as did the Panel not think he was more skilled than myself or perhaps other applicants and needed to be retained in NHS?

[127]The claimant complains that she did not receive a response from Mr Brady promptly thereafter.

[128]I note that the voluntary redundancy issue was very important to the claimant and indeed to other long serving employees who applied for it. It was clearly a subject for anxious discussions. It is also the case that some of the detailed questions the claimant was asking could not properly be answered, particularly where they related to detailed information about other applicants.

[129]On 2 January 2024 Mr Brady wrote to Ms McDonnell-Davies forwarding the claimant’s emails of 21 December 2023: Could I ask you to consider Shobhna’s latest email below. If you read further down, my initial reply (composed following our previous discussion) is also there. How would you like to respond? My concern is that this is just going to continue to be a running email dialogue – more so, if the ICB wide panel also approves Margaret’s VR application. Do you think setting up a feedback meeting with Shobhna may be more effective and an opportunity to close this dialogue down.

[130]On 3 January 2024, the claimant had a call with Mrs Lever in which she raised concerns about the situation with the generic inbox and her workload generally. She said that she had been told that senior management would support her if there was a need.

[131]Mrs Lever then sent her an email in which she said that Ms Ladd had said she would cover Monday afternoon and Tuesday all day: As discussed, if Gita is on rota for Monday 15th Jan then Saijal can do Tuesday 16th and we will go from there with Nisha and myself offering support to you both if needed.

[132]On 4 January 2024, the claimant wrote to Mr Brady saying that she was still waiting for answers to her questions.

[133]Also on 4 January 2024, as she was not happy with the call she had had with Mrs Lever, the claimant wrote to Mrs Lever and Mrs Patel about the generic inbox rota, making twelve points about the generic inbox and other work she had and saying: When you are on duty for the generic inbox, you are always on alert for query/queries, and it can be stressful. I am going from 2-2.5 days to 3.5days+ /week on generic duty and I will for the first time in this job have to say, “No capacity to take on extra work”. I have amended the generic rota for next week to do some pending work from my last 121 meeting and will be sending rota to all.

[134]Mrs Lever replied: I have seen the rota until the end of January and thank you for taking on most of the generic box monitoring – it is appreciated. As we discussed yesterday as we are so thin on the ground we do need to work as team prioritising our workload . Nisha , Maninder and I should be able to provide support and please do let me (or Nisha if I am not around) know if you are overwhelmed at any point or if you feel you will have issues with capacity, and we shall help with prioritisation and support with queries. If queries are not urgent and require more time for a response , I suspect extensions of the response time should be fine in most cases as long as this communicated to the enquirer -If the turnaround times becomes unachievable perhaps, we can review the wording on the MMT holding email. I must admit I am not sure how to send an email to all practices so perhaps you can go through this with me next week. Many thanks for your continued hard work which is always appreciated.

[135]Mrs Lever was asked in cross examination about the twelve items. Some she said were spread across other members of the team, some were not urgent, some were not onerous. The claimant put to her that she could have sat down with her to reassure her at the time. Mrs Lever said she had concentrated on query management, which had been the claimant’s most important concern. The others were less critical and could have been managed by identifying priorities. Part of the reason she later wanted to have a chat with the claimant in early February was to understand what the claimant was saying was stressful.

[136]The claimant said that she did not feel this email properly addressed her concerns. She said that Mrs Lever only worked three days per week so could not assist her on other days. She said that Mrs Patel worked short days two days and not at all on Fridays. There was also the care home inbox. Ms Ladd, who covered care homes, worked Monday, Wednesday and Friday only. She said that this email seemed to politely shut down her concerns and that Mrs Lever should have called a meeting with her or a team meeting. The email caused her to feel that there was no more dialogue to be had. She said that although Mrs Lever said she was willing to assist, no one was willing to slot their names into the rota. It was put to her that she could have referred matters to Mrs Singh, who worked full time. She was doubtful how much support these senior managers would be able to provide when they had their own workstreams and multiple meetings to attend as well as working part time. She said that she would be mindful that they were busy.

[137]The claimant put to Mrs Lever that she should have arranged a meeting with the claimant. Mrs Lever said that the claimant could have asked for a meeting if she was not happy with the response. They had worked together for many years and the claimant would have known that she and Mrs Patel would be there for her when needed.

[138]I saw a rota which showed that the claimant would be covering the generic inbox for three days per week in January 2024. Ms Karia, another pharmacist, was due to leave the respondent’s employment on 16 January 2024.

[139]On 5 January 2024, the claimant and other employees in her position were told that further voluntary redundancy applications would be considered as one person had withdrawn a successful application. Ms McDonnell-Davies, the chair of the local panel, wrote to the claimant and Ms Bye. She said that: We will send your original application, subsequent appeal and the view of your line manager to the ICB Wide Panel to consider whether a subsequent VR application can be approved. This will be completed by 12 January 2024.

[140]The claimant asked on 8 January 2024: The original policy does not say that the view of the line manager will be taken into consideration. Line manager comments are a new criteria to the original VR policy. Considering this, what are the other new and additional criteria that will be followed? If there are these additional criteria to be assessed, would the Panel require any additional information from the me?

[141]Mrs McDonnell-Davies replied that day: It’s the same criteria and process via NCL panel as for all other applications. Managers where available were asked for brief comments the first time and will be asked again. The comments are given against the criteria and we have specified this. Nothing more needed but thanks for the offer.

[142]Both Ms Bye and the claimant applied for their applications to be reconsidered.

[143]On 8 January 2024, Mr Brady responded to the claimant’s earlier questions saying he would refrain from answering the questions until the ICB panel had considered the remaining applications.

[144]Ms Bye had also corresponded with Mr Brady. Mr Brady had provided Ms Bye with summary feedback on 19 December 2023, Ms Bye wrote back with questions that day, and then chased Mr Brady on 4 January 2024. On 8 January he wrote to Ms Bye saying, as he had done to the claimant, that he would defer answering her questions until after the further ICB panel decision.

[145]On 10 January 2024: there was an away day on transition planning in Warren Street for the five borough medicines management teams.

[146]The away day formally finished at 12:30 pm but some people remained to talk further until about 1:30 pm and the claimant and some colleagues went to visit the Camden offices where the claimant understood she would be based in future. The claimant then headed home. She was delayed on the Tube and arrived back at about 3:30 pm. She then had her lunch break before starting work.

[147]It appeared that the claimant had had an email from Mrs Singh at about 3:40 pm asking why her out of office email was not on, but this email was not in the bundle.

[148]Mrs Singh’s evidence was that she asked Mrs Lever about the claimant’s whereabouts as she had wanted to speak to the claimant about work and her out of office was not on. She spoke to Mrs Lever but Mrs Lever did not know where the claimant was. Mrs Singh said that she was concerned about the claimant’s welfare because of her mobility issues. She checked the claimant’s Outlook calendar prior to trying to contact her to see if she was available but the claimant had nothing scheduled for the afternoon. Mrs Lever tried to call the claimant but her phone was off. She then emailed the claimant to let her know that her Outlook calendar did not say where she was and that she and Mrs Lever were concerned about her.

[149]The situation in respect of the claimant’s out of office email was somewhat opaque and I ultimately concluded that it was unnecessary for me to resolve exactly what the position was. There was in the bundle an out of office email from the claimant to Mrs Singh at 2:56 pm that day which Mrs Singh in evidence said that she did not believe she had received. She said that she had tried to contact the claimant as her out of office was not on. There was also a screenshot from the claimant’s Outlook account which appeared to show her out of office being on from 5 pm on 10 January 2024. At 3:29 pm, Mrs Lever wrote to the claimant to say her out of office might need a review. The claimant wrote back at 5:16 pm: I put the out of office message as we are away for a meeting. The error is it should say Thursday 8.30am not 17.00pm. I went thereafter with the Camden team to look at the offices @ Camden . Then got home which took 1.5hours (you can check with Saijal) and had my 1 hour lunch break.

[150]Mrs Singh wrote to the claimant at 5:28 pm: Thanks for your email however, there was nothing in your calendar to say where you were. In future it would be helpful, if you call or message your line manager or me to let them know where you are as we were both concerned? Secondly, I needed to discuss some important work with you which I have since managed.

[151]There was a dispute between the parties as to whether there was anything in the claimant’s Outlook calendar indicating where she was that afternoon. The claimant said that at the time it would always have included on a rolling basis an entry for ‘MHFA Catch-up’ at 1 pm and ‘lunch and walk’ at 1:30 – 2:30 pm. Mrs Singh said that at that point in time there was nothing in the claimant’s calendar for the afternoon.

[152]Mrs Lever’s note on OneNote for 10 January 2024 read: The meeting finished at 12 pm - SR went to Camden offices to look around - her journey home took 1.5 hours and then she had her 1 hour lunch break . I emailed at 3.29 following email from MKS and called at 4.50 on mobile to check she was OK. Shobhna did not make contact with Maninder or myself until 5.16 on Thursday 10th.

[153]The claimant said that if Mrs Singh and Mrs Lever were concerned about her welfare, they could have contacted HR.

[154]On 11 January 2024, the claimant said that she had an unexpected Teams call from Mrs Singh. She said that Mrs Singh told her it was ‘not good’ that she had visited the Camden office without telling Mrs Lever. In oral evidence she said that the words were ‘It’s not good what happened yesterday’. The claimant said that she explained to Mrs Singh where she had been and that she had been in contact with a colleague, Ms S Ladd.

[155]The claimant said that she became frustrated and said to Mrs Singh, ‘What do you think you could have done if you were worried about my whereabouts?’ She said that Mrs Singh said she didn’t know and the claimant said: ‘How about phoning me to see where I was?’. She said that she twice said to Mrs Singh: ‘You thought I was skiving didn’t you?’ She said that Mrs Singh did not reply to that. She went on to say that perhaps Mrs Singh’s manager would need to resolve the issue and that she felt betrayed by senior colleagues. She said that she had been in the NHS for forty years and no one had accused her of skiving. She and Mrs Singh then went on to talk about work.

[156]Mrs Singh’s account of the encounter on 11 January was that she held the Teams meeting with the claimant to understand what had happened and whether the claimant was OK. She said that she was aware of her mobility issues so she was concerned about her safety when she could not be located. When the claimant explained she had gone to the Camden offices, Mrs Singh said that she should have informed Mrs Lever what she was planning to do for the rest of the day and that it was appropriate for Mrs Singh to ask about her whereabouts as a manager. She explained that she had done so because there was nothing in the claimant’s Outlook calendar and she could not reach her. She said that the claimant became extremely aggressive and shouted at her. She said that everyone was entitled to a lunch break. She said that Mrs Singh should have asked everyone else in the Camden office if they had seen the claimant. Mrs Singh said that Mrs Lever had tried to contact the claimant but her phone was off and that was why Mrs Singh had sent an email.

[157]The claimant described the call as aggressive on the part of Mrs Singh. She said that they would not have gone on to talk about work if she herself had been aggressive and shouting as alleged. Mrs Singh said it was possible they had gone on to discuss work but she stood by the account she gave that the claimant had been aggressive and shouted. She believed she would have said to the claimant that she did not think she was skiving, that’s not why she was calling, she was contacting her to see if she was OK and to talk about work. Mrs Singh said that she would not have had any doubts about the claimant’s professionalism or diligence and would not dream of saying that she was skiving

[158]In a note the claimant made on 27 February 2024 the claimant had a somewhat different account of the discussion Next morning Maninder had a team meeting with me saying it was out of order what I had done. I explained that if all the Barnet managers were worried why did no one try to ring me to see where I was? I had both my personal and work mobile and there were no missed calls. She was still not happy and said let us have a meeting with Rachel Clarke to sort this out. Then, I said to her that you thought I was skiving didn't you? I asked her twice and she was unable to answer me back. I said in my years in the NHS nobody has ever accused me of skiving.

[159]In the claimant’s subsequent grievance meeting, there were the following notes: SR [the claimant] said "can I be honest?" RC [Rachael Clark] "yes, of course", "The 'skiving' incident was the end for me. I don't feel it is something I can come back from Perception hurts. I have an audit trail If I can't do something, I say I love the MMT and I'll help anyone who needs it, I'm a professional I can't go back it's such a pity but my health and wellbeing are more important. So many things have happened.

[160]Mrs Singh said in oral evidence that it was important to have effective communication when someone was offsite and important to have an effective out of office notification.

[161]The claimant said that when she spoke with Mrs Lever that day about the incident, Mrs Lever said she would have to put up with Mrs Singh’s management style and way of working. In cross examination, the claimant agreed that this was a reference to Mrs Singh liking people to use calendars and record time in them.

[162]The claimant had a role as a Mental Health Champion (‘MHC’). This was a voluntary role she had held since about July 2021. In her diary she scheduled an ‘MHFHA catchup’ each day at 1 pm. This was a time when the MHCs could contact one another for support if required although in fact the claimant said she had not had to use the time for this purpose.

[163]On 11 January 2024, Mrs Lever had a Teams meeting with the claimant and asked her about her MHC work. The claimant said that Mrs Lever asked what the MHFA catchup was and she explained that it was a space preserved for NCL Mental Health Champions to have support from each other, if required, when dealing with a mental health issue on behalf of others. In fact the claimant had not had to use these meetings.

[164]There were also a meeting every two months with Mr I Porter, a director, to discuss general mental health themes in the workplace. The claimant said Mrs Lever asked for a summary of these meetings with a view to the claimant discussing them at a team meeting and also asked how many calls the claimant received. The claimant said that those matters were confidential. In oral evidence the claimant said that Mrs Lever asked for minutes of the monthly meetings. The claimant was asked in cross examination why the number of calls was confidential; she said that it was to her and that she thought the next question Mrs Lever asked would be as to the contents of the calls.

[165]Mrs Lever’s account in evidence was that she was not sure that the claimant’s MHC role had been sufficiently communicated to the team, and so she asked the claimant to explain what the role involved at a team meeting and that she might have enquired whether many staff used the service and how many calls the claimant received. She also wanted to understand how much time the role took and whether the claimant was overloaded. She did ask for a summary of what happened at the meetings with Mr Porter but accepted the claimant’s assertion that it was confidential; she would never have asked the claimant to divulge anything confidential. She did not press further. The whole purpose of her enquiries was to be supportive to the claimant and the team at a very difficult time (the restructuring).

[166]The following day, 12 January 2024, the claimant wrote to Mr Porter saying she wanted to flag up the discussion, which she said she had been shocked by, and asking for his advice. Mr Porter responded to say he would set up a meeting with her.

[167]The claimant said in evidence that she did not feel Mr Porter took the issue she raised seriously at the meeting ultimately held on 16 January 2024, at which she also discussed the ‘skiving’ incident and other concerns. She raised with Mr Porter that she was stressed and referred to the extra work she was doing due to colleagues being off sick and a colleague taking voluntary redundancy. The claimant’s notes about the meeting include the following: He asked if have good relations with Suzanne [Lever] - said I had known her for 16 years and get on with her very well. With the new management, she does exactly what the new manager says but not realise the impact on persons she looks after. So, when I discussed about Maninder think I was a skiver, she just said you must get used to Maninder's way of working. So, I explained that I don't use calendar regularly … He said managers have their style of working. More I think about-lan did not seem fussed about the pressure put on me about asking me to write the summary and possible confidentiality issues….

[168]On 12 January 2024, the claimant also wrote to a colleague, Ms R Stennett: I am doing 4 people’s job today and that is what is going to be going forward (for 3.5 days/week) - really stressed out.

[169]On 18 January 2024, the claimant was absent from work with stress and anxiety. She was issued with a sick certificate for three weeks.

[170]Mrs Lever’s OneNote record for that day said: 18/1/24 Spoke to Shobhna at 8.30 she call in tears saying she is stressed her blood pressure is up and she has not been sleeping and she can’t concentrate I asked if she had considered Pam assist - She is mental health champion and she said she had a mentor who she has been discussing this with She is having a phone consult with GP today She wants to take today as sick leave - and I can put down stress I said I would send her details of pam assist

[171]On 24 January 2024, Mr Brady wrote to the claimant to say that her renewed voluntary redundancy application had not been approved. He copied the email attaching the outcome letter to Mrs Singh as the claimant was away, so that the outcome could be forwarded to the claimant’s personal email account.

[172]Mrs Singh said that she had explained to Mr Brady that the claimant was on sick leave and that it had been agreed she would forward any updates relating to her work to her personal email account whilst she was on sick leave.

[173]In fact what appears to have happened is that, on 18 January 2024, Mrs Singh had sent a WhatsApp message to the claimant saying that she needed to forward her an email that HR had copied her into and asking for her personal email address in order to do so. That must have been a different communication from the notification from Mr Brady, given the dates.

[174]The claimant said in evidence that her earlier communication with Mrs Singh was not blanket permission for Mrs Singh to forward other documents and that Mr Brady should have asked Mrs Lever if the claimant was happy for him to have her private email address to send the email to or she should have been asked how she wanted to receive the letter or indeed it could have been posted to her.

[175]Mrs Singh said in evidence that she would not have thought she needed to get further consent each time she sent an email to the claimant’s personal email address.

[176]Mr Brady said that he had not felt it was inappropriate to ask a manager, who would know the outcome of the VR process as they would be told at the same time, to provide this correspondence to the claimant. It would not have been confidential. At the time he was seconded into the respondent and did not have access to the claimant’s personal email address on the HR system.

[177]Ms Bye’s application for voluntary redundancy was approved and she was informed accordingly. The email was sent to her private and NHS (work) accounts directly by Mr Brady. I did not hear any evidence about why Mr Brady had Ms Bye’s personal email address.

[178]On 25 January 2024, the claimant emailed Mr Brady: As advised, you emailed me before 24/1/24 to say that the answers to my questions will be addressed after the VR decision of 24/1/24. I would be grateful if you could email the answers just to me and not through an intermediary.

[179]Mr Brady did not respond to that email. In cross examination he said that he would not have been able to provide further answers, information about other candidates was confidential and some questions were no longer relevant. He accepted in cross examination that it would have been better if he had at least replied to the claimant to explain why he was providing no further information.

[180]Ms Bye was selected for voluntary redundancy by the ICB VR Panel. Mrs Singh’s evidence was that on this occasion her views were sought on the assessment against the criteria of the two Barnet candidates and she also sought Mrs Lever’s input. She said that her views had not been sought previously. It was possible she was not around / on annual leave at the time of the earlier voluntary redundancy decision and that could have been why she was not involved.

[181]Mr Brady said in his witness statement: From the bundle, I can see that there were objective reasons why [Ms Bye] was selected in light of the objective selection criteria. For instance, Ms Bye’s portfolio was borough-based whilst Mrs Rokad’s was both borough-based and ICB-wide. Mrs Rokad was deemed to have greater organisational intelligence and had been in the role longer and so had greater exposure of working with different practices, and Mrs Rokad had specialist knowledge in diabetes and dietetics by contrast with Ms Bye who did not hold such specialist knowledge.

[182]I note that the claimant did not agree with that reasoning but the reasons for and/or fairness of the redundancy selection process were not issues for me to decide.

[183]On 31 January 2024, Mrs Lever telephoned the claimant to discuss her wellbeing. She had messaged her the day before to ask if she was free for a catch up. She said that the claimant mentioned that both her work and her family were causing her stress. Mrs Lever said that she explained that they would meet informally to discuss the situation in accordance with the respondent’s policy as the claimant had had twelve days off. She wanted to understand about the claimant’s stress and anxiety so any necessary adjustments could be made and she wanted to start the OH referral process in a more timely way than she had in 2022.

[184]Mrs Lever said that at that point the claimant ‘exploded’ and became very upset, crying and shouting about the absence process in 2022.

[185]Mrs Lever wrote in her OneNote: Absence-Management-Policy-and-Procedure-NCL.pdf (icb.nhs.uk) 31/1/24 Call agreed with Shobhna Dr said relax for a couple weeks Working with mentor - who asked her to call Dr - Too stressed to contact - had not contacted pam assist Generally not feeling good - with work and family Waiting for IAPT sent forms - waiting to contact. I mentioned informal meeting as per absence policy which would just be between us and she immediately started crying uncontrollably and then shouted about the formal process after her last absence for ankle operation - I was not able to understand what she was saying and I suggested we leave the call as she was so upset but she continued to cry/shout and then she accused Maninder of suggesting she was a skiver after the Jan 10th team meeting and she said I did not support her . She then said she was too upset to talk and slammed the phone down.

[186]The claimant’s account was that, towards the end of the call, Mrs Lever asked if they should arrange a call for 6 February 2024. The claimant said ‘fine’ and Mrs Lever then said it would be a formal meeting but she had yet to look at the absence policy. The claimant said she was extremely upset and asked why Mrs Lever was doing this to her as the claimant said that she was aware that Ms Bye had not been put on a stage 1 absence process. She said that Mrs Lever said that Ms Bye had been placed on stage 1. The claimant said she could not recall what happened after that but she was crying her eyes out and said to her daughter that the respondent had done it again and was going to put her on a formal disciplinary. She said that Mrs Lever had used the words ‘formal meeting’ prior to her getting upset. It was after that that she was too upset to take things in.

[187]Mrs Lever said in cross examination that she did not say it was a formal meeting. She had the absence policy there, indicating that it would be an informal meeting, and she had spoken to HR first. It would have been out of line with the policy to have a formal meeting. She could not recall if she had said in that call that Ms Bye had also had a stage 1, although as a matter of fact Ms Bye had had a stage 1 and Mrs Lever believed that she had found it very useful. She was hazy about the details of the call. She did not think she would have divulged anything confidential. It was put to the claimant in cross examination that the notes of her grievance hearing, as taken by the notetaker, did not record her saying that Mrs Lever had said she needed to read the absence policy.

[188]Mrs Lever wrote to HR about the meeting that day: I also mentioned that in line with absence policy we will have an informal meeting at some stage that would be between us – please could you confirm that my understanding of the absence policy is correct and that there be an informal meeting after 12 days absence ? At that point Shobhna became exceptionally upset and started crying and shouting at me about the formal process that she had when she had her foot operation and then she started shouting about another episode but it was hard to hear what she said as she was so upset - I remained calm and suggested we end the call as she was getting upset and she carried on shouting then ended the call

[189]After advice from HR, Mrs Lever planned to speak with the claimant in terms she set out in an email to HR on 1 February 2024: I will contact my team member and will guide the conversation as follows:• Appreciate the conversation did not go well yesterday

• Sorry if this made you upset that was not the intention.

• Make it very clear the intention is always to help and support her back to work

• We do not have to go through an informal process - this can be done when SR is back to work

• Suggest OH referral to support her - they can do a virtual assessment

• Ask for agreement to continue weekly catch up

[190]On 1 February 2024, Mrs Lever tried to telephone the claimant and then messaged her: Hi I hope you are ok – I am now on leave until next Wednesday – I wanted to speak to today to reassure you of our continued support and hope we can catch up next week – sending you best wishes

[191]Mrs Lever said in evidence that she was hoping to clarify and make things right so the claimant would understand that Mrs Lever’s intention had genuinely been to support her.

[192]On 4 February 2024, the claimant exchanged WhatsApp messages with her colleague, Ms Wong, in which the claimant spoke about her blood pressure being high and her GP saying that was due to stress. Ms Wong said that ‘work is most likely the culprit... I hope they haven’t been dumping stuff on you. You need to learn to say no.’ the claimant replied: ‘Easily said - the work schedule has been relentless in the past months with no respite.’

[193]On 5 February 2024. The claimant contacted HR about the call on 31 January 2024. She reported that Mrs Lever had said she was arranging a formal meeting for the following week and had not yet read the absence policy. The claimant said that she felt she was ‘going to be possibly subject to a disciplinary action without any advance notice or the reason on why this was going to happen.’ She asked to be notified in advance about the purpose of meetings and to be contacted at the end of her sick leave so that she could focus on her recovery.

[194]Also that day, the claimant wrote to Mrs Lever to say that she wished all correspondence to be via email with her personal email address.

[195]Ms K Lester, people adviser, responded to the claimant’s email to HR that day. She said, amongst other things: Regarding your manager Suzanne contacting you whilst you are on sick leave, maintaining regular contact (once a week) with employees whilst they are off sick, is something we would always recommend to ensure that employees who are off sick feel supported. Having regular contact tends to help employees return to work sooner, as adjustments can be put in place if regular conversations are happening. In regards to formal sickness absence meetings, we would always advise that 5 working days notice is given as mentioned in the Absence Management Policy. Generally, sickness absences would initially be informal then progress on to the formal stage. I would suggest when you have your next catch up with Suzanne that you discuss your concerns with her, this will enable her to provide you with some answers which will hopefully provide some reassurance to yourself.

[196]On 6 February 2024, the claimant wrote to Ms Lester raising further concerns about the call with Mrs Lever and saying: Finally, you have sought to place the onus on myself to clear up what my line manager has clearly got wrong but that should not be the case. My manager ought to comply with the policy in the first place. If she hasn’t read the policy that is an error on her part. However, I do think that now I have referred this to HR - and I am already on sick leave - the onus simply should not be on me to correct my manager. This should be coming from HR.

[197]On 13 February 2024, Ms Lester responded to the claimant: Thank you for your reply and your comments. We will discuss your concerns with your line manager Suzanne.

[198]Ms Lester had in fact already been in contact with Mrs Lever to discuss managing the claimant’s sickness absence and an occupational health referral and Ms Lester assisted Mrs Lever in drafting an email to the claimant to try to provide some reassurance about the 31 January 2024 telephone conversation and to initiate an occupational health referral.

[199]The claimant was critical of this discussion between Mrs Lever and Ms Lester. She said that it appeared that this was a meeting for Mrs Lever to get support on constructing an email to the claimant following the incident on 31 January 2024 rather than a meeting where HR spoke on the claimant’s behalf to address the claimant’s unhappiness about the phone call or where HR advocated on her behalf to resolve the issue with management.

[200]On 14 February 2024, Ms Lester provided further assistance to Mrs Lever in drafting an email which was largely about providing reassurance to the claimant.

[201]On 27 February 2024, the claimant raised a grievance in which she complained of harassment in relation to the 31 January 2024 telephone call and surrounding matters and other issues such as Mrs Lever asking about her MHC work, her increased workload due to a reduction in team numbers and the handling of the VR process.

[202]The assistant director of medicines optimisation, Ms R Clarke, was appointed to hear the grievance.

[203]On 1 March 2024, the claimant wrote to Mrs Lever and HR: Due to reasons outlined in the grievance, which include the way in which my health and wellbeing are viewed at work and the way that I have been made to feel at work, I have no option but to resign as a Prescribing Advisor. I will work the remainder of the notice and my last day of employment will be 31st May 2024.

[204]Mrs Lever became aware of the claimant’s resignation when she returned for leave on 5 March 2024. She said that she was upset as she considered the claimant a friend as well as a colleague. She did not telephone her as she had been asked by the claimant not to.

[205]The claimant was still signed off sick and she and Mrs Lever had a Teams meeting on 9 April 2024. They continued to meet on Teams. Mrs Lever asked if the claimant wanted a different manager during this period but the claimant said that she did not.

[206]On 1 May 2024, the claimant commenced a phased return. She worked on a discrete project during the remainder of her employment.

[207]On 16 May 2024, Ms Clarke sent the claimant an outcome to her grievance. The complaints were not upheld.

[208]From 20 May 2024, the claimant was on annual leave until the end of her employment on 31 May 2024. Evidence about workload

[209]The claimant said that over the last few years of her employment, the team lost members who were not replaced. After Mr Daff left in June 2020, there was a general reduction in numbers. She said that due to the diminution in staff, her workload increased significantly, particularly in respect of generic inbox duties.

[210]There were two 8b managers in the Barnet team: Mrs Lever and Mrs Patel. There were the claimant and Ms Bye at grade 8a latterly. The claimant said that during Mr Daff’s tenure there had been a larger number of grade 8a staff. The claimant said that there were times when staff were on long term sick leave. This was true of Ms Bye and Ms Wong. I did not have a comprehensive account of exactly what the team in Banet looked like over time but rather a more general account of shrinkage.

[211]Generic inbox duties were a particular focus in the claimant’s witness statement. Each borough of the five had a generic inbox for queries which largely came from GP practices. Mrs Singh had instituted this generic inbox when she started in role. Queries including urgent queries were directed to this inbox and the person on the inbox rota would deal with these alongside their other work. The claimant said that she would have the inbox open alongside her other work as queries could come up which were urgent. Some days there were a lot of queries or the queries were complex. It might be necessary to get outside advice. Some queries were simple. There was also a care home inbox.

[212]There was some discussion in evidence about whether this work could be delegated to pharmacists in other boroughs. The claimant said Barnet queries were confidential to Barnet. It was put to her that patient identifiable data could be removed from queries before referring them. She said that it might be necessary to look at patient specific material from the GP practice. Some queries would be referred to pharmacists with specialist skills, eg to a colleague who was a mental health pharmacist.

[213]Mrs Singh accepted that the Barnet inbox was for queries from Barnet GP practices and that other boroughs had their own inboxes. Pharmacists in one borough could get advice and support from other teams such as ‘IPMO’ (integrated pharmacy medicine optimisation team) by redacting patient identifiable data. There was a log or spreadsheet of queries which could be used to provide answers where similar queries arose. In more recent times, when the five borough teams had merged properly, a central generic email inbox had been developed. This postdated the claimant’s departure.

[214]Mrs Lever said it was an option to ask other boroughs if they had had a similar query, or to ask specialist teams. Queries could be sent to the generic inboxes of the other boroughs. Camden for example had the lead pharmacist on ADHD.

[215]There was a rota for the inbox to be monitored. This was initially prepared by Mrs Lever. The claimant complained in about October 2022 that the rota was unfair to her as she was assigned more Fridays, which were heavier days, than other staff due to working patterns. The claimant therefore was given some responsibility for drawing up the rota after that. Her evidence was that staff absences meant she sometimes had an unfair share of the rota. She accepted that up until January 2024, she tended to average one to two days on the rota and sometimes 2.5. The claimant had said in a one-to-one with Mrs Lever on 3 January 2022 that she was happy to offer two days on the generic inbox although she pointed out in cross examination this was also subject to other work increasing.

[216]There were messages from August 2023 which showed that Ms Patel and Mrs Lever were stepping in to assist with covering the rota at that time.

[217]The claimant relied on messages she sent to other staff as showing the excessive workload and its effects on her. The most relevant were - WhatsApp messages between the claimant and Ms Ladd in January 2024 when the claimant was off work with stress and anxiety. The claimant refers in these messages to suffering panic attacks and being concerned about work piling up on Ms Ladd in her absence; - The messages with Ms Wong in February 2024 show Ms Wong giving her opinion about work being the likely culprit in relation to the claimant’s stress.

[218]The claimant also pointed to some messages about work allocation: - There were WhatsApp messages with Ms Bye on 8 June 2021 in which the claimant said that they would be expected to be on a rota for a task called Epacct formerly done by Mrs Lever; - There were WhatsApp messages from 5 August 2021 in which she told Ms Bye that Mrs Singh was expecting some slides by lunchtime. The claimant said those had been assigned at 11 am that day; - There was a message which showed the claimant working late. This was a message to Ms Bye on 29 June 2022 sent after 10 pm in which the claimant said: I am still working through my presentation as was exhausted with all the meetings etc and level of work on OVIVA required Not half a day/ week as proposed. Anyway don’t worry. Neel is up doing his work so that is good company and with my classic fm.

[219]The respondent’s witnesses made the point that the claimant could not have been experiencing a problem with workload during the periods she herself was on sick leave.

[220]The account given by the respondent’s witnesses was that there had been a lot of change in the way that pharmacist services were provided. The five individual borough medicine management teams were merging to operate as one medicines optimisation team. I was told this process had started in about 2021 at least unofficially and was becoming more formal. The respondent’s pharmacists were no longer expected to work in GP practices. I was told there were new ways of working and some roles could be consolidated across boroughs. There was more sharing of tasks across the boroughs.

[221]Mrs Lever said that some of the individuals whom the claimant had pointed out as having left had worked on bespoke projects or portfolios which had been completed and in respect of these there was therefore no work to hand over. Mrs Singh said that this was ‘most’ of the people the claimant had cited as leaving. Mr Sheldon Russel worked part-time on a workstream relating to diabetes which Mrs Singh said was paused on his retirement. Diabetes was managed across the boroughs. Mr Dharush Attar-Zadeh worked primarily on training as a contractor; after he left, the work he was doing was transferred to the respondent’s training hubs.

[222]Mrs Lever said that the clinical pharmacists introduced into GP practices and the use of primary care network pharmacists from 2019 reduced the amount of work to be done centrally. The respondent said that sickness absences took place at different times. If people were off sick, Mrs Lever said, the work would have to be reprioritised. Mrs Singh was clear that there should not be out of hours working.

[223]Although Mrs Singh said in her witness statement that she was not made aware that the claimant was struggling with her workload, in oral evidence she said that she would have been aware at the time when the claimant had told Mrs Lever she was having issues with workload as her own direct reports would keep her informed of issues with their reports.

[224]Mrs Lever accepted that at times there were ‘pinch points’ when the team was under increased pressure due to sickness absence or for other reasons. She said that during those periods they would review the work streams and reprioritise work to ensure key work was done,. Non-essential work would be paused at these times. She said that if someone raised workload concerns, she would sit down with the individual to discuss how to make the workload more manageable. She said that no one had to work over their contracted hours. They would look at the workload and prioritise accordingly.

[225]I heard some evidence about the OVIVA project, which the claimant said had added to her workload. Neither Mrs Lever nor Mrs Singh considered that the claimant had a large amount of work in relation to this project.

[226]I saw documentary evidence of occasions when the claimant had raised her workload as follows: - On 22 March 2023, Mrs Lever wrote to the claimant with the subject line ‘catch up workload’: Lovely to catch up with you – thank you for your time If you feel overloaded please let me know and I can help you prioritise or share tasks within the team if need be Maninder just contacted me to confirm she is going to Oviva meeting tomorrow so you don’t have to go – and can have that hour back With regard to other areas• Cip savings is priority so please do continue with this work as you have planned – thanks you for this

• Powerpoint for Pan Barnet meeting – link in with me when I come back (6th April ) as meeting not until 20th April – so don’t work on this until then

• SLGT2 /UTI – please do not work on this as I was told not a priority Thank you for your support with queries – if you find you do have too many in a day then do contact rest of team if you need support and I am sure they will do the same ! The claimant said in evidence that the remark about being overloaded was made in a one to one catch up with Mrs Lever. It was not a complaint. She had told Mrs Lever that she was kind of overloading her at the moment and she could do with a bit of help. She agreed that Mrs Lever was telling her to concentrate on the most important things and not expecting her to do more than she could cope with. - The following appeared in Mrs Lever’s notes for April 2023: She seems to be struggling with her current workload so would be good to understand what support is needed? Diabetes lead for Barnet-support? She is part of the NCL diabetes group and no urgent work currently I am aware of? Oviva lead for Barnet- Saijal will be supporting moving forward PSP Queries Mental health lead - commitment Not sure if I have missed anything - On 31 May 2023, Mrs Lever recorded about her one-to-one with the claimant: General feeling - feel overwhelmed by extent of work and broadness / new things taken on board Nice to interact more with other boroughs - need to have some meetings with Training - advice on all sorts - complaining not training - need training in diabetes - diabetic network - don’t know much - feel out of depth when go to meetings / training hub - On 9 August 2023, Mrs Lever’s notes say: spoke to Gita and Shobhna we established Shobhna has 7 reports to do and 9 visits and Gita has 9 reports and ? I went through excel spreadsheet with them both as they both were concerned about this part of report We went through the work plan Shobhna mentioned that Oviva were still having issues with access that needed to be sorted When discussing queries, Shobhna was tearful again telling me how much pressure she was under and that she has pain and I suggested she leave the call and I would pick this up with her at a later date but she wanted to continue and then was fine. I emphasised that she should let me know if she is not well enough to work. She has Training for technician on monitoring and had not started slides and said she did not know if she had capacity for this – My feeling is, is that she is not confident producing Powerpoint slides – training needed?

[227]There were the interchanges on 4 January 2024 described at paragraphs 133 – 138 above. Mrs Lever said she spoke to Mrs Singh at that time and they agreed that they would provide support the claimant needed. Annual leave issue

[228]The respondent’s Absence Management Policy contains provisions for medical and dental appointments: Staff are expected to make every effort to ensure that medical and dental appointments are made before or after the working day. Where this is not possible, it is expected that appointments will be arranged to minimise disruption to their work. Therefore, appointments should be made at the beginning or end of the normal working day, i.e. within the first or last working hour. Part-time staff and shift workers should try to schedule routine appointments for when they are not working. Where an employee has no alternative but to attend such appointments during working hours options available are flexibility in working hours, annual leave or unpaid leave. The line manager will work with the employee to come to a flexible agreement which supports the employee and the needs of the service. When the appointments become more frequent or the employee has a disability and is required to attend regular appointments (i.e. regular physiotherapy/ attending on-going treatment) the individual should advise their line manager in advance of the appointments. The manager shall consider reasonable adjustments to accommodate the disability related requirements including variation of working hours, flexible working hours or using a combination of unpaid and annual leave or paid time off to attend appointments. Employees must inform their line manager of any appointments where possible at least 1 week in advance of the appointment. The employee should also bring in their appointment card and pass to their line manager when requesting time off to attend an appointment at the request of the line manager.

[229]The version of the policy which I saw was dated 3 February 2020.

[230]The claimant said that in April 2022 she was told by two colleagues that there had been a presentation via Teams in March 2022 to all staff at which staff were told that they would have to take annual leave for medical appointments and that there would be no paid leave for these appointments. The claimant was off sick recovering from her foot operation at the time.

[231]The claimant said that she assumed that was the practice thereafter and booked annual leave for her medical appointments. She said that neither Mrs Singh nor Mrs Lever suggested that she should have paid leave despite them being aware that she was taking annual leave for medical appointments. She said that the managers never raised with her that there was a discretion within the policy. She accepted in evidence that she never sought a copy of the PowerPoint presentation or sought to discuss the apparent change of policy with her managers. She said she trusted her colleagues.

[232]Mr Brady’s evidence was that the content of the policy had not changed in 2022. He felt that the policy was fair as it allowed flexibility for employees whilst ensuring the operational needs of the respondent were met, Allowances and adjustments could be made for those known to have a disability.

[233]The claimant said that she was aware of other employees, including Ms Bye, taking annual leave for their medical appointments. It was put to her that Ms Bye had an arrangement whereby 50% of her appointments would be paid leave and 50% annual leave. The claimant said she had been told by Ms Bye that Ms Bye took annual leave. She questioned why she could not have had a similar arrangement to that Ms Bye was said to have had. She accepted that she had not asked about reasonable adjustments in this respect. There was only one occasion when, instead of taking annual leave, she worked different hours.

[234]In oral evidence, Mrs Lever said that Ms Bye had a large number of appointments because of weekly tests she had to go to. Mrs Lever therefore looked at the policy and Ms Bye was not required to take annual leave for the weekly appointments but had to do so for additional appointments. Mrs Lever said there was always an option for staff to take unpaid leave or make up hours for their appointments.

[235]Mrs Lever said that this policy on appointments had been discussed in team

[236]She was aware the claimant had had some medical appointments but they were sporadic and she would have expected the claimant to speak to her if she was concerned about using annual leave. The claimant had not come to talk about the issue and she had not perceived there to be any trigger to initiate such a discussion herself.

[237]I did not have a comprehensive account of how many days the claimant took annual leave due to her medical appointments or the individual reasons for those appointments. It appears that she had more numerous appointments in 2023 due to abdominal pain issues which turned out to be liver disease. The claimant said in general that she used up a lot of annual leave on appointments. There was reference in her voluntary redundancy application as follows: Finally, my own health has been impacted by both Covid-19 and increasing family commitments. I have reduced mobility due to a major foot operation in 2021. I am awaiting an operation for an abdominal complaint. Hospital appointments have used up one third of my annual leave. My fear is that my worsening health will impact my performance. This makes me unhappy as I pride myself on maintaining high standards in my work. There was no evidence as to how this leave was divided as between impairments.

[238]Mrs Lever said that she did not recall there being any change in the policy at the time. She would manage appointments by seeking to agree with employees how best they could take their appointments, whether by scheduling appointments outside working hours, by making up time or by booking annual leave. She said that was how she managed the claimant’s annual leave. She did not recall the claimant raising any issue about appointments. Had the claimant done so, Mrs Lever would have sought HR advice.

[239]The claimant said she had not had discussions with Mrs Lever about other ways of managing her appointments. Because of the time involved in her appointments and travelling to them, they could not be accommodated simply by adding an hour to the beginning or end of the work day. Submissions

[240]I received helpful oral and written submissions from both parties which I have considered carefully.

[241]I raised with the parties in their oral submissions the rather limited legitimate aim set out in the list of issues in respect of the respondent’s justification defence of the section 15 claims. Miss Stroud said that the drafting was sufficient to cover the aims of the policies themselves insofar as these related to the issues in the claim. In respect of the policy in relation to medical appointments the aims were to minimise the intrusion of appointments into working time and allow for reasonable adjustments to be made. Miss Stroud submitted that no amendment was necessary. Although the list of issues did not spell out the aims fully, paragraph 50 of the amended grounds of response said, inter alia: 50.4 The Respondent’s policies were applied fairly and consistently across the organisation; and 50.5 The Respondent managed workloads in a way which ensured the key organisational system needs were met, while also supporting its employees to have time off from work when necessary.

[243]In the alternative, Ms Stroud said that the amendment should be allowed as, given that Mr Brady had given evidence in his witness statement about the respondent’s need to balance its operational needs against the needs of employees, particularly those with disabilities, the defence could come as no surprise. Law Knowledge of disability

[244]An employer has a defence to a claim under s 15, if it did not know or could not reasonably have been expected to know of the employee’s disability: s 15(2) Equality Act 2010.

[245]Lack of knowledge that a disability caused the ‘something arising in consequence’ of which the employee was subjected to unfavourable treatment is not a defence to a claim under s 15: City of York Council v Grosset

[2018] ICR 1492

, CA.

[246]An employer must do all it can reasonably be expected to do to find out whether an employee has a disability: EHRC Employment Code, para 5.15. Discrimination arising from disability

[247]In a claim under s 15, a tribunal must consider: - Whether the claimant has been treated unfavourably; - Whether the unfavourable treatment is because of something arising in consequence of the employee’s disability; - Whether the employer knew, or could reasonably have been expected to know, that the employee or applicant had the disability relied on.

[248]There are two aspects to causation: - Considering what caused the unfavourable treatment. This involves focussing on the reason in the mind of the alleged discriminator; - Determining whether that reason was something arising in consequence of the claimant’s disability. That is an objective question and does not involve consideration of the mental processes of the alleged discriminator: Pnaiser v NHS England and anor

[2016] IRLR 170

, EAT.

[249]An employer has a defence to a claim under s 15 if it can show that the unfavourable treatment was a proportionate means of achieving a legitimate aim.

[250]Assessing proportionality involves an objective balancing of the discriminatory effect of the treatment and the reasonable needs of the party responsible for the treatment: Hampson v Department of Education and Science

[1989] ICR 179

, CA. Harassment

[251]Under s 26 Equality Act 2010, a person harasses a claimant if he or she engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of(i) violating the claimant’s dignity, or

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. In deciding whether conduct has such an effect, each of the following must be taken into account: (a) the claimant’s perception; (b) the other circumstances of the case; and (c) whether it is reasonable for the conduct to have that effect.

[252]By virtue of s 212, conduct which amounts to harassment cannot also be direct discrimination under s 13.

[253]In Richmond Pharmacology Ltd v Dhaliwal

[2012] IRLR 336

, EAT, Underhill J gave this guidance in relation to harassment in the context of a race harassment claim: ‘an employer should not be held liable merely because his conduct has had the effect of producing a proscribed consequence. It should be reasonable that that consequence has occurred. The claimant must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created, but the tribunal is required to consider whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so……..Not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers and tribunals are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other discriminatory grounds) it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.’

[254]An ‘environment’ may be created by a single incident, provided the effects are of sufficient duration: Weeks v Newham College of Further Education EAT 0630/11. Constructive dismissal

[255]Section 95(1)(c) of the Employment Rights Act 1996 provides that an employee is taken to be dismissed by his employer if “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”.

[256]It is established law that(i) conduct giving rise to a constructive dismissal must involve a fundamental breach (or breaches) of contract by the employer;

(ii) the breach(es) must be an effective cause of the employee’s resignation; and (ii) the employee must not, by his or her conduct, have affirmed the contract before resigning.

[257]If a fundamental breach is established the next issue is whether the breach was an effective cause of the resignation, or to put it another way, whether the breach played a part in the dismissal (Nottingham County Council v Miekle and Abbey Cars Ltd v Ford EAT 0472/07). In United First Partners Research v Carreras

2008 EWCA Civ 1493

the Court of Appeal said that where an employee has mixed reasons for resigning, the resignation would constitute a constructive dismissal if the repudiatory breach relied on was at least a substantial part of those reasons

[258]In this case the claimant claims breach of the implied term that the employer should not, without reasonable and proper cause, conduct itself in a way that is calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence that exists between an employee and her employer. Both limbs of that test are important. Conduct which destroys trust and confidence is not in breach of contract if there is reasonable and proper cause.

[259]It is irrelevant that the employer does not intend to damage this relationship, provided that the effect of the employer’s conduct, judged sensibly and reasonably, is such that the employee cannot be expected to put up with it (Woods v Car Services (Peterborough) Limited)

[1981] ICR 666

. It is the impact of the employer’s behaviour (assessed objectively) on the employee that is significant - not the intention of the employer (Malik v BCCI

[1997] IRLR 462

). It is not however enough to show that the employer has behaved unreasonably although “reasonableness is one of the tools in the employment tribunal’s factual analysis kit for deciding whether there has been a fundamental breach”: Buckland v Bournemouth University

[2010] IRLR 445

[260]The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In Omilaju v Waltham Forest LBC [2005] ICR the Court of Appeal said that the final straw may be relatively insignificant but must not be utterly trivial: “The test of whether the employee's trust and confidence has been undermined is objective.”

[261]A breach of the implied term of trust and confidence is necessarily a repudiatory breach of contract: Ahmed v Amnesty International

[2009] ICR 1450

[262]In Kaur v Leeds Teaching Hospitals NHS Trust

2018 EWCA Civ 978

the Court of Appeal listed five questions that it should be sufficient ask in order to determine whether an employee has been constructively dismissed;a. What was the most recent act (or omission) on the part of the employer which the employee says cause, or triggered, his or her resignation?

b. Has he or she affirmed the contract since that act?

c. If not, was that act (or omission) by itself a repudiatory breach of contract?

d. If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which viewed together amounted to a (repudiatory) breach of the implied term of trust and confidence? (If it was, there is no need for any separate consideration of the previous possible affirmation).

e. Did the employee resign in response (or partly in response) to that breach?

[263]It is of course somewhat artificial to require an employer who denies having dismissed an employee to show a reason for the dismissal. The Court of Appeal addressed this problem in Berriman v Delabole Slate Limited

[1985] ICR 546

where the Court said that, in the case of a constructive dismissal, the reason for the dismissal is the reason for the employer’s breach of contract that caused the employee to resign. This is determined by analysis of the employer’s reasons for so acting, not the employee’s perception (Wyeth v Salisbury NHS Foundation Trust UK

EAT/061/15

). Rule 49

[264]There are specific statutory powers under the Employment Tribunals Act 1996 and the 2024 Rules of Procedure dealing with restrictions on publication and on public access to hearings.

[265]Rule 49 which is headed 'Privacy and restrictions on disclosure', provides as follows:(1) The Tribunal may, on its own initiative or on the application of a party, make an order with a view to preventing or restricting the public disclosure of any aspect of proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person.

(2) In considering whether to make an order under this rule, the Tribunal must give full weight to the principle of open justice and to the Convention right to freedom of expression.

(3) Any order made under this rule may require— (a) that a hearing that would otherwise be held in public be conducted, in whole or in part, in private; (b) that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the Register or otherwise forming part of the public record; (c) that measures are to be taken to prevent witnesses at a public hearing being identifiable by members of the public; (d) that a restricted reporting order is in place within the terms of section 11 (restriction of publicity in cases involving sexual misconduct) or 12 (restriction of publicity in disability cases) of the Employment Tribunals Act; (e) that the name, address or other information of, or relating to, any person be redacted from a claim form, response form, witness statement or any other document in the proceedings.

(4) Any party, or other person with a legitimate interest, who has not had a reasonable opportunity to make representations before an order under this rule is made may apply to the Tribunal in writing for the order to be revoked or discharged, either on the basis of written representations or, if requested, at a hearing.

(5) Where an order is of the kind mentioned in paragraph (3)(d), the order— (a) must specify the person whose identity is protected, (b) must specify the duration of the order, (c) may specify particular matters of which publication is prohibited as likely to lead to that person's identification, and (d) may specify that it also applies to any other proceedings.

(6) The Tribunal must ensure that a notice that an order has been made under this rule in respect of particular proceedings is displayed on the notice board of the Tribunal with any list of the proceedings taking place before the Tribunal, and on the door of the room in which the proceedings affected by the order are taking place.

(7) "Convention rights" has the meaning given to it in section 1 of the Human Rights Act 1998.

[266]Article 8 is a qualified right: ARTICLE 8: Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The case

Law

[267]The starting point is the common law principle of open justice. In R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates' Court

[2012] EWCA Civ 420

[2012] 3 All ER 551

CA, the Court of Appeal described the principle of open justice as follows: ‘Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? … In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse.

[268]This was echoed by the Supreme Court in R (on the application of C) v Secretary of State for Justice

[2016] UKSC 2

: 'The rationale for a general rule that hearings should be held in public was trenchantly stated by Lord Shaw of Dunfermline in the leading case of Scott v Scott

[1913] AC 417

at 477, [1911–13] All ER Rep 1 at 30. He quoted first from Jeremy Bentham: “'In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.' 'Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.' 'The security of securities is publicity.'”

[269]In Scott v Scott

[1913] AC 417

HL, Lord Atkinson acknowledged the importance of the principle in the following terms: '… The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect …'

[270]In R (Guardian News & Media v Westminster Magistrates Court, the Court of Appeal added: ‘The purpose of the open justice principle .. is not simply to deter impropriety or sloppiness by the judge hearing the case. It is wider. It is to enable the public to understand and scrutinise the justice system of which the courts are the administrators’ .

[271]This principle of open justice is also an aspect of the right to a fair trial, provided by

Article 6 of the European Convention on Human Rights

. Art 6(1) says: 'In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.'

[272]Article 10 is also relevant. Art 10(1) says: ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. …’

[273]As with Article 6, Article10 rights are qualified. Art 10(2) says: ‘The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society …. for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’

[274]Other Convention rights (including the right to respect for a private life under Article 8) may outweigh the requirement for public access to judicial proceedings or pronouncements.

[275]Where Convention rights give rise to competing interests, the House of Lords in Re S (a child) (identification: restrictions on publication),

[2004] UKHL 47

[2004] 4 All ER 683

said: '… neither article has as such precedence over the other … where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary … the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each …'

[276]The Supreme Court in Re Guardian News and Media Ltd

[2010] UKSC 1

[2010] 2 AC 697

[2010] 2 All ER 799

added that 'the weight to be attached to the rival interests under articles 8 and 10 – and so the interest which is to prevail in any competition – will depend on the facts of the particular case'

[277]In Cape Intermediate Holdings Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK)

[2019] UKSC 38

, the Supreme Court said: There should be no doubt about the principles. The question in any particular case should be about how they are to be applied. The principal purposes of the open justice principle are two-fold and there may well be others. The first is to enable public scrutiny of the way in which courts decide cases - to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly. But the second goes beyond the policing of individual courts and judges. It is to enable the public to understand how the justice system works and why decisions are taken. For this they have to be in a position to understand the issues and the evidence adduced in support of the parties’ cases.

[278]In LQP v City of York Council, City of York Training Limited

[2022] EAT 196

, the claimant had produced letters from his GP which referred to a risk of selfharm or suicide. In the EAT, HHJ Tucker said: That evidence clearly engaged the rights protected by

Article 2 of the ECHR

. Article 2 is indeed an unqualified right, i.e., it is not subject to similar provisions as Articles 8 and 10 are in Art 8(2) and Art 10(2) respectively. In addition, under the ECHR the State has positive duties within Article 2 to protect life or to take steps to prevent the threat to life from materialising. Further, even if the evidence of a threat to physical safety is not sufficient to engage Article 2, the facts may engage Article 8, an individual's mental health being an aspect of private life protected by that provision (See Bensaid v UK

(2001) 33 EHRR 10

). … If an individual informs their GP that the consequence of a particular matter is that they are considering self-harm or suicide, it may be difficult for anyone, or any party, to effectively assert that that is anything but the truth. If there is any degree of scepticism about that, I consider that it is worth taking a step back and to reflect upon what has occurred: an individual has reported to their GP that their mental health is not good, to the extent that they have considered self-harm or suicide. Those are significant matters which, in my judgment, should be given appropriate respect and consideration. Society's awareness and understanding of mental health has evolved and continues to develop. The risk of self harm and the risk of suicide to those involved in challenging events should not be too readily dismissed, even within hotly contested litigation. That approach is consistent with the decision of Mammadov v Azerbaijan

(2014) 58 EHRR 18

at para. 115: the threat of suicide should be treated with utmost seriousness.

[279]The following passage from Bensaid will in an appropriate case be relevant: “Private life” is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Article 8 (see, for example, Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, pp. 18-19, § 41; B. v. France, judgment of 25 March 1992, Series A no. 232-C, pp. 53-54, § 63; Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, p. 28, § 24; and Laskey, Jaggard and Brown v. the United Kingdom, judgment of 19 February 1997, Reports 1997-I, p. 131, § 36). Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, Burghartz, cited above, opinion of the Commission, p. 37, § 47, and Friedl v. Austria, judgment of 31 January 1995, Series A no. 305-B, p. 20, § 45). The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life Conclusions 2 CONSTRUCTIVE UNFAIR DISMISSAL Issue 2.1 Did the Respondent do the following: 2.1.1 Between September 2021 and 19 January 2024, required the Claimant to carry out increased work on behalf of the Respondent following the departure of colleagues who left employment or were off sick, but were not replaced. The Claimant relies on the following:(a) SR – left September 2021 (not replaced).

(b) AZ – left March 2022 (not replaced).

(d) RB - left January 2024 (not replaced), prior to this had been on intermittent long- absences..

(e) SW - absent from September 2023 until April 2024.

(f) GK – left January 2024 (not replaced).

Conclusions

[280]It is very difficult for the Tribunal to assess workloads. I accepted that in respect of some colleagues who had left, the work in effect left with them. I also accepted that, due to changes to the way the work was arranged, there were contractions in the overall work required of the claimant’s team alongside contraction in the number of staff.

[281]I also accepted that there were times when the claimant, who was acknowledged to be a conscientious worker, did have a heavy / heavier than usual workload. The respondent said that this was a ‘pinch point’ rather than a continuous situation. It was very difficult for me to assess where the truth lay as to the size of the claimant’s workload over what was an extended period. A good indicator was whether the claimant raised the issue. The claimant was not someone who appeared to me to be reticent about speaking up with her managers when there was cause for complaint. Ultimately, it seemed to me that the evidence did not show the claimant raising workload as an issue continuously throughout the period, although she did on a number of occasions in 2023 onwards, with gaps. I considered that this was likely to reflect the fact that there was some ebb and flow and that certainly at times over that latter period, the claimant did feel overloaded. However on every occasion where the issue was documented, there was also evidence of Mrs Lever offering support. The real concern about the generic inbox seems to have arisen from January 2024 onwards.

[282]It seemed to me that the situation was more acute in January 2024, when the departure and anticipated departure of staff did leave the claimant with more work at least in the short term, for example with respect to the generic inbox. There was a 30% reduction in staff in train. Whilst there was some capacity to obtain assistance on inbox queries, there was still a significant amount for the member of staff actually on the rota to perform.

[283]I also accepted the evidence of Mrs Lever and Mrs Singh that they would reorganise and reprioritise work when necessary and when the matter was raised with them. They had done so in the past.

[284]My conclusion in terms of whether the workload issue was itself a breach of the implied term of trust and confidence was that it was not. Although there were certainly workload pressures from time to time, I concluded that they were intermittent and I was satisfied that the managers did what was appropriate to mitigate the effect on individual employees. I consider further below whether nonetheless, this could have been part of a course of conduct which constituted a breach of the implied term. Issue: 2.1.2 In January 2024, Suzanne Lever failed to address the Claimant’s

[285]It appeared to me that Mrs Lever felt she had responded to the claimant’s concerns appropriately and had given her assurances of support. The claimant was concerned that the offers were insufficiently specific and concrete. It seemed to me that the assurances provided by Mrs Lever would reasonably have satisfied an employee in the claimant’s position in circumstances where there was a good and trusting relationship between the manager and the employee. It appeared to me from the documents I saw that Mrs Lever had historically acted to offer support on each occasion when the claimant had raised a concern about overwork. Although the claimant said in evidence that the managers had their own workstreams, there was always a senior manager around throughout the week and there was no evidence that the claimant had been rebuffed by any of the managers on the basis that they did not have time for her concerns.

[286]That was the relationship which Mrs Lever and the claimant had had historically. It appeared that the last time previous to January 2024 when the claimant had raised concerns about her workload had been August 2023.

[287]It was also true that in January 2024, Ms Karia was due to depart. The email which the claimant sent contained a number of detailed points and the claimant made a strong statement about having no capacity for extra work. In the circumstances, Mrs Lever would have been wise to take some time to discuss the situation with the claimant. The claimant herself failed to ask for a meeting. That seemed to me to be a function of growing disgruntlement with Mrs Lever, related in large part to the handling of the claimant’s ill health absence.

[288]I consider further below whether Mrs Lever’s failure to meet with the claimant to discuss the issue, taken together with other matters constituted a breach of the implied term. It certainly did not do so on its own. Issue: 2.1.3 In January 2024, Suzanne Lever asked the Claimant to disclose conversations she was having with work colleagues who needed mental health support, which the Claimant considered private and confidential;

[289]On the claimant’s own evidence, that is not an apt characterisation of what occurred. Mrs Lever asked about how many calls the claimant received and what happened at the meetings attended by the MHCs. She did not ask for any information about what was said to the claimant by colleagues seeking mental health support. The claimant simply feared that this would be Mrs Lever’s next question.

[290]Again, the claimant’s perception of the situation seemed to me to be highly coloured by her growing mistrust of Mrs Lever, caused by earlier issues about the claimant’s ill health absence. I could not see anything blameworthy in Mrs Lever’s actions and I did not conclude that this matter could have contributed to a breach of the implied term. Issue: 2.1.4 In January 2024, the Claimant being informed by her GP that she had

[291]This is not an action or omission of the respondent and could not have contributed to a breach of the implied term. Issue: 2.1.5 In January 2024, Maninder Kaur informed the Claimant that she was not successful at the second-round voluntary redundancy scheme in breach of her confidentiality and without her consent;

[292]It did not seem to me that the claimant’s view of this event was a reasonable one. Mr Brady was looking for a way to get the outcome letter to her efficiently. The outcome of the voluntary redundancy process was not a secret to Mrs Singh. The claimant had not previously objected to a communication being sent to her via Mrs Singh. In the circumstances, it does not seem to me that either Mr Brady or Mrs Singh were at fault in relation to this event or that it was capable of contributing to a breach of the implied term. Issue: 2.1.6 In January 2024, Maninder Kaur spoke down to the Claimant, with the added suggestion that the Claimant had been neglecting her employment duties without proper justification;

[293]It is clear that this was a very upsetting episode for the claimant. She had had a long and successful career with the respondent and she felt that Mrs Singh was contacting her because she thought she was skiving.

[294]It is clear that Mrs Singh had instituted something of a culture change in expecting employees to put their whereabouts in their Outlook calendars. This was something that did not come naturally to the claimant.

[295]I did not reject the evidence of Mrs Lever and Mrs Singh that there was a genuine concern about the claimant’s whereabouts and wellbeing due to her known mobility issues. The claimant suggested that if they had been genuinely concerned, they would have contacted her husband or the police; that would have been a gross overreaction in the circumstances and it seemed to me perfectly natural and reasonable that they had tried to contact the claimant by email and telephone in the first instance.

[296]So far as Mrs Singh’s telephone call to the claimant the next day is concerned, I accept that the claimant felt spoken down to and felt that Mrs Singh was accusing her of skiving. She said as much to Mrs Singh.

[297]It also appeared to me that, looking at the claimant’s own account of the conversation, she had quickly become upset and repeatedly accused Mrs Singh of saying she was skiving. She was at the very least forthright in how she expressed herself. I accepted that Mrs Singh had opened the conversation with a remark that expressed her displeasure about the claimant being uncontactable. This would no doubt have felt to the claimant like a ‘telling off’. It seemed clear that there were difference in management style between Mrs Lever and Mrs Singh and that Mrs Singh was a stickler for employees recording their whereabouts accurately.

[298]Looking at the matter in the round it seemed to me that Mrs Singh was justified in wondering about the claimant’s whereabouts and for imposing greater compliance with diary use. I accepted that the way she approached with the claimant, a senior, long serving and trusted employee, lacked some tact and finesse. I consider below whether that contributed to a breach of the implied term of trust and confidence. Issue: 2.1.7 On or around 14 December 2023 to January 2024, Mr Brady/HR failed to address the Claimant’s queries regarding the voluntary redundancy scheme it operated, or, in the alternative, to address those concerns in a timely manner;

[299]I concluded, looking at the course of the correspondence, that the claimant had received such feedback as she was fairly entitled to. The specific questions she asked relating to other applicants, in particular Ms Karia, related to information the respondent properly viewed as confidential.

[300]Ultimately, and as he accepted, Mr Brady should have responded to the claimant’s chasing email and he bears a degree of fault in not doing so. I consider below whether that contributed to a breach of the implied term of trust and confidence. Issue: 2.1.8 On 31 January 2024, Suzanne Lever informed the Claimant that she

[301]I accepted Mrs Lever’s evidence that she had in fact mentioned an informal meeting. This was consistent with what she said to HR the same day. I accepted that she had checked the policy and what she said was consistent with the policy. This was consistent with her notes.

[302]The claimant accepted that she had become very upset during this call. It was clear to me that she had been lastingly upset by the earlier attendance management process in 2022 and was extremely sensitive to the idea of being dealt with under the respondent’s procedures.

[303]The claimant said that she became so upset was because she had been told that there would be a formal process. However, I noted that on 17 February 2022 she had become deeply upset about a process which she said she believed she had been told was a ‘tick box’ exercise.

[304]Overall, I preferred Mrs Lever’s account of what was said, which was more consistent with such documents as existed.

[305]I could see nothing about Mrs Lever’s action in seeking to comply with the respondent’s absence management policy which could contribute to a breach of the implied term. Issue 2.1.9 On 31 January 2024, Suzanne Lever said in a call to the Claimant that she had yet to look up the Absence Management Policy despite initiating the process under it to the Claimant;

[306]It was clear to me that this was a planned call. I accepted that it was unlikely Mrs Lever would have gone into a planned call without preparation and I accepted that she had looked at the policy and had not told the claimant she had not done so. Her account was supported by her contemporaneous note: ‘I mentioned informal meeting as per absence policy’. She had also placed a link to the policy just above her note for this date in OneNote.

[307]I was again influenced by my impression that the claimant responded with such a high level of emotion, her ability to take in and recall what happened appears to have been affected.

[308]Given my factual finding, there was nothing under this head capable of contributing to a breach of the implied term. Issue: 2.1.10 On 31 January 2024, Suzanne Lever incorrectly stated to the Claimant during a call that Ms Bye was also subject to the formal ‘Stage 1’ process for longterm absence, when that was not the case;

[309]Mrs Lever accepted in cross examination that she might have told the claimant about Ms Bye’s stage 1 process although she had said in her witness statement that she did not recall doing so and would not have discussed confidential matters relating to one employee with another.

[310]The claimant submitted that this inconsistency undermined Mrs Lever’s evidence on other points. I considered carefully whether that was an appropriate conclusion. I did not consider it was. Mrs Lever had said she did not recall speaking about Ms Bye. Many things may jog or trigger memory, including going over evidence in the course of cross examination. It appeared that there was some degree of embarrassment on Mrs Lever’s part about having said something she considered confidential about Ms Bye and that may have inhibited recall. Ultimately, the fact that she was willing to modify her account in this respect caused me to have more rather than less confidence that she was being honest about matters which she did maintain under cross examination.

[311]The claimant said that I should conclude that it was not true that Ms Bye had been subject to a formal process because the respondent had failed to produce documentary evidence when it would have been easy to do so.

[312]I note that this was one of a long list of issues and that the documents in question would have contained confidential information about Ms Bye. They should have been disclosed nonetheless, however in the circumstances I did not draw an inference that they did not exist.

[313]The claimant said that Ms Bye was not subject to any such process. That was based on what she had been told by Ms Bye. There could be many reasons why Ms Bye might have told the claimant she was not subject to a formal process. They include a desire to maintain her own privacy and a different understanding of what parts of the process are formal. I did not conclude that Mrs Lever had been untruthful about this matter given that I found her to be a straightforward and reliable witness in other respects and given that there seemed to me to be no good reason for her to be motivated to lie to the claimant about this matter.

[314]Given my factual finding, there was nothing under this head capable of contributing to a breach of the implied term. Issue: 2.1.11 HR failed to address the concerns raised by the Claimant on 5 February 2024 by suggesting that the onus was on the Claimant to correct Suzanne Lever, rather than HR;

[315]The claimant accepted in cross examination that the approach in fact taken by Ms Lester was in accordance with the informal stage of the respondent’s grievance procedure. I could not in any event see anything inappropriate or blameworthy about Ms Lester’s approach.

[316]Given my factual finding, there was nothing under this head capable of contributing to a breach of the implied term. Issue: 2.1.12 On or around February 2024, Mr Brady/HR decided to respond to Ms Bye’s queries regarding the voluntary redundancy scheme it operated but not the Claimant’s;

[317]This claim was based on screenshots of WhatsApp messages provided by the claimant which the claimant ultimately accepted did not support her account of events. The evidence did not support the view that Ms Bye had received fuller or other answers to her queries than the claimant received.

[318]Given my factual finding, there was nothing under this head capable of contributing to a breach of the implied term. Issue: 2.1.13 On 14 February 2024, Suzanne Lever lied to the Claimant when she said that she did not refer to a ‘formal’ meeting during the call on 31 January 2024;

[319]Given my conclusions above, I did not conclude that Mrs Lever had lied.

[320]Given my factual finding, there was nothing under this head capable of contributing to a breach of the implied term. Issue:2.1.14 Between 5 February 2024 to 14 February 2024, HR ignored and/or failed to do anything about the Claimant’s concerns regarding Suzanne Lever lying to the Claimant during the call on 31 January 2024.

[321]I have set out the course of events. Mrs Lever, with the help of HR was trying to find the best way to reassure the claimant. Ms Lester was engaging appropriately with the claimant’s various concerns raised in correspondence.

[322]I could not see any conduct of Ms Lester which could have contributed to a breach of the implied term. Issues: 2.1.15 Between 28 November 2023 and 24 January 2024, the failure of the Respondent/Voluntary Redundancy Panel to explain their decision making process in relation to the Claimant's application for Voluntary Redundancy. and 2.1.16 Between 19 December 2023 and 24 January 2024, the failure of Respondent/Voluntary Redundancy Appeal Panel to explain their decision making process in relation to the Claimant's appeal for Voluntary Redundancy.

[323]The only failure I considered occurred was the failure by Mr Brady to update the claimant ultimately to say that there was no further information to be provided about her application and appeal. Issues: 2.2 Did that breach the implied term of trust and confidence? Taking account of the actions or omissions alleged in the previous paragraph, individually and cumulatively, the Tribunal will need to decide:2.2.1 whether the Respondent had reasonable and proper cause for those actions or omissions, and if not

2.2.2 whether the Respondent behaved in a way that when viewed objectively was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the respondent. 2.3 Was the fundamental breach of contract a reason for the Claimant’s resignation?

[324]I have concluded in my consideration of each of the individual issues that none of these on its own constituted a repudiatory breach of contract. I considered whether the following matters taken together constituted such a breach: - Increased workload in January 2024; - Mrs Lever not doing more to reassure the claimant about her workload, such as holding a meeting in January 2024; - Mrs Singh’s manner to the claimant when raising the issue of her whereabouts in Janaury 2024; - Mr Brady’s failure to respond further to the claimant’s queries about the voluntary redundancy process.

[325]I did not consider that these matters take together did breach the implied term. Mrs Lever had provided the claimant with reassurance in writing and had previously acted to assist the claimant with workload pressures. So far as Mrs Singh was concerned, managers do sometimes make errors as to tone and approach. Below a certain level that is part of the give and take of working life. Similarly, with respect to Mr Brady, managers do occasionally fail to respond to correspondence. The claimant was pushing for more information than she was reasonably entitled to. Looking at the character and volume of the matters about which the claimant had legitimate cause to complain and the context in which those matters arose, I concluded that these could not properly be said to be likely to seriously damage the relationship of trust and confidence or calculated to do so.

[326]In the circumstances, I have not concluded that the claimant was constructively dismissed. It follows that she was not dismissed and cannot succeed in a claim for unfair dismissal. Issue: 2.4 Did the Claimant affirm the contract before resigning, by delay or otherwise? The Tribunal will need to decide whether the Claimant’s words or actions showed that she chose to keep the contract alive even after the breach.

[327]It was not necessary for me to go on to consider this issue. 3 DISABILITY Issue 3.1.3 The Respondent contends that it knew the Claimant was disabled by virtue of(a) Flat feet from August 2021;

(b) Hypertension from February 2024; and

(c) Pulmonary (lung) hypertension from February 2024. 3.1.4 The Respondent contends it did not know and could not have reasonably have been expected to know that the Claimant was disabled by virtue of liver dysfunction.

[328]It was relevant for me to decide whether the respondent had actual or constructive knowledge of the claimant’s liver condition, hypertension and/or pulmonary hypertension at relevant times.

[329]Looking at the claims which remained after the claimant withdrew her direct discrimination claims, it did not appear that any of the ‘things arising in consequence of disability’ were said to arise as a result of the claimant’s liver condition nor that any of the alleged acts of harassment were in any way related to the claimant’s liver condition.

[330]So far as the claimant’s liver condition was concerned. It did not seem to me that the respondent had actual knowledge that there was a long term adverse effect on the claimant’s day to day activities. Ought the respondent to have known? It seemed to me that the respondent would have been aware that the claimant had significant issues for a period in summer / autumn 2023 and previous gall bladder problems which might or might not be connected. There was nothing that should reasonably have caused the respondent to investigate further at that point. The point had not arrived when for one reason or another an occupational health referral should have been made and nothing the claimant had said seemed to me to be something which would reasonably have informed the respondent that her condition was likely to have a substantial effect on her day to day activities over the long term.

[331]So far as the hypertension and pulmonary hypertension are concerned, it appeared to me that the respondent had knowledge that the claimant had pulmonary hypertension since at least the date Mrs Singh was told about it ‘some time after’ 2022 and that she had hypertension from about June 2023 when the claimant said she told Mrs Lever.

[332]I did not have evidence from which I could conclude that the respondent did in fact know that these conditions had a substantial adverse effect on the claimant earlier than February 2024. There was nothing the claimant pointed to as having been said or written that would have had the effect of conveying the relevant information to the respondent.

[333]Should the respondent have known? I looked to see whether there were events which should have provoked relevant enquiries. There was nothing referred to which it seemed to me should have had that effect.

[334]In all of those circumstances, I concluded that the respondent did not have actual or constructive knowledge that the claimant was disabled by reason of liver dysfunction at material times or that she was disabled by reason of hypertension / pulmonary hypertension earlier than February 2024. 5 DISCRIMINATION ARISING FROM DISABILITY (EQUALITY ACT 2010 SECTION 15) 5.2 If so, did the Respondent treat the Claimant unfavourably in any of the following alleged respects: 5.3 Did the following things arise in consequence of the Claimant’s disability:5.3.1 The need to attend medical appointments (post flat foot operation, hypertension, and pulmonary lung hypertension);

5.3.2 The need for sufficient breaks during the working day to move around (including walking around) to avoid stiffness and circulation issues (flat foot);

5.3.3 The need to take regular painkillers and at times supplement with stronger painkillers to manage discomfort in her right leg (flat foot);

5.3.4 The need to recover from intensive surgical operation generally, but also due to the need to take strong medication which makes her drowsy (flat foot);

5.3.5 The need to take regular time off to avoid exacerbating anxiety and stress (hypertension). 5.4 Has the Claimant proven facts from which the Tribunal could conclude that the unfavourable treatment was because of any of those things? 5.5 If so, can the Respondent show that there was no unfavourable treatment because of something arising in consequence of disability? Issue: 5.2.1 The Respondent’s new absence policy in April 2022 which required employees to take annual leave should they need to attend medical appointments during working hours;

[335]It did not appear from the evidence that the respondent had a new policy in 2022. What appears to have happened is that the claimant heard second hand about a presentation on the existing policy and for some reason simply accepted that account. That account did not say anything about the discretion in the policy to accommodate medical appointments in other ways.

[336]It appeared that the claimant’s complaint was really that, under the policy as it was, she herself was not subject to any discretionary arrangements such as that which Ms Bye enjoyed.

[337]So the complaint properly analysed was that because the claimant had disabilities, she required more medical appointments. The unfavourable treatment complained of was that she was required to take annual leave for these appointments.

[338]Was the reason for this unfavourable treatment any of the ‘somethings’ identified by the claimant?

[339]The claimant did not suggest that the treatment was because of any of the somethings at paragraphs 5.3.2 – 5.3.5.

[340]Was it because of 5.3.1? The need to attend medical appointments (post flat foot operation, hypertension, and pulmonary lung hypertension);

[341]As I have said above, I did not have detail on the medical appointments the claimant had for these various impairments. In any event I have not found that the respondent had knowledge that the claimant was disabled by reason of her hypertension or pulmonary hypertension prior to her long absence in early in 2024. I had no evidence that the claimant attended medical appointments in respect of these conditions in the limited time she was back at work.

[342]I had no evidence about what appointments the claimant had had to have in respect of her flat foot condition after her operation in 2022.

[343]In the circumstances, there was no relevant unfavourable treatment and this claim is not upheld and is dismissed. Issue: 5.2.2 From around 27 September 2021 to 17 February 2022, the Claimant’s line manager, Suzanne Lever, pressuring the Claimant to return to work despite a full sick note dated 19 August 2021 in fortnightly calls;

[344]I was not persuaded that the claimant had made all of the notes of the calls she relied on absolutely contemporaneously, given the improbability of her description of how she took the notes whilst in bed and on the phone and given the way the notes themselves appeared on the page, with some important matters clearly added afterwards.

[345]I accepted that Mrs Lever had on occasion told the claimant she was missed. However I also accepted her account that she made that sort of statement in a context of the claimant being somewhat miserable at home and against a background of a long and good relationship. I accepted her evidence that her intention was not to pressure the claimant but to make her feel valued. It seemed to me that the claimant could not reasonably have regarded Mrs Lever as subjecting her to pressure to return to work given what was said, the context in which it was said and the positive relationship between the two. It appeared that the claimant was at the time viewing matters through a glass darkly due to being stuck in bed immobile and in pain.

[346]I did not accept that there was unfavourable treatment and this claim is not upheld and is dismissed. Issue: 5.2.3 Between 1 February 2022 to 26 April 2022 Suzanne Lever ignoring the advice given on the OH Report, which she commissioned on the Claimant, and which recommended that the Claimant be left to recover for a period of 12 weeks;

[347]The OH report did not say that the claimant should be left to recover for twelve weeks without contact from management which is what the claimant said that the occupational health adviser had said to her during the assessment. The report said that the claimant was not expected to be fit for work for that period. Mrs Lever did not ignore any express or implicit advice in the report.

[348]There was no unfavourable treatment and this claim is not upheld and is Issue: 5.2.4 On 17 February 2022, Suzanne Lever presenting to the Claimant that a meeting on 6 April 2022 would be an informal ‘tick box’ exercise, when it was not;

[349]I accepted that Mrs Lever told the claimant that the meeting was a formal meeting. The claimant would not have included that in her subsequent email had it not been said. What seems to have happened is that, because the claimant was upset, Mrs Lever attempted to reassure her about the meeting. . I accepted that she probably used the words ‘tick box’ as part of an attempt to reassure the claimant.

[350]The essence of this complaint is that Mrs Lever is alleged to have been misleading about the nature of the meeting. I did not conclude she had been, given that I accepted she said that it would be formal. It seemed to me that the reference to ‘tick box’ would have been an attempt to reassure the claimant that there was not likely to be any very adverse consequence of that meeting rather than to mislead the claimant as to the formality of the meeting.

[351]In the circumstances, I was not persuaded that this treatment could properly be regarded as ‘unfavourable’. If I was wrong about that, it did not seem to me that Mrs Lever saying it was a tick box exercise was in any relevant way because of any of the somethings arising, although some of them created the context in which the remark was made. However, Mrs Lever’s reason for saying what she did was to reassure an employee she was fond of and who was upset.

[352]For those reasons, I do not uphold this claim and it is dismissed. Issue: 5.2.5 In or around April 2022, the Respondent’s misapplication and/or decision to place the Claimant on a formal ‘Stage 1’ process whilst she was signed off work for health reasons in breach of its own Absence Management Policy;

[353]I did not consider that the respondent had misapplied its policy or acted in breach of its policy, although I accepted that the policy could have been more clearly expressed. It was clear, however, that the formal stages in the appendix applied to long term absences as well as intermittent absences, in particular because the section about long term absences referred to stages of the procedure set out in the appendix.

[354]In the circumstance, this allegation is not factually made out. It is therefore not upheld and is dismissed, Issue: 5.2.6 The Respondent’s failure to inform the Claimant or her Union Representative that a ‘formal’ Stage 1 process meeting was being initiated until the start of the meeting on 6 April 2022;

[355]I have found as a fact that Mrs Lever did inform the claimant that the meeting would be a formal meeting and this was reiterated in correspondence with the claimant. It is true that the correspondence did not say that the meeting was stage 1 meeting under the respondent’s policy.

[356]Was that unfavourable treatment? I was persuaded that it was in the sense that the claimant could reasonably have felt put at a disadvantage in that she was not aware that the meeting could lead to the further formal stages with ultimately risk of dismissal and that could have led to the claimant and her representative not having been appropriately prepared.

[357]I considered whether there was evidence from which I could reasonably conclude that the failure to include reference to the meeting being a stage 1 meeting was materially because of any of the somethings arising in consequence of disability identified. I could identify no such evidence. It seemed to me that Mrs Lever was favourably disposed to the claimant and keen to support her. The failure to refer to the meeting a stage 1 meeting appears to have been inadvertent.

[358]This claim is not upheld and is dismissed. Issue: 5.2.7 The Respondent’s handling of the formal ‘Stage 1’ process, including its

[359]Ultimately this allegation boiled down to the fact that the letter recording the meeting did not refer to the discussion about what type of meeting the meeting was. That discussion was reflected in all parties’ notes. The outcome letter was focused on the outcome of the meeting and the actions to be taken. It did not seem to me that it was unfavourable treatment of the claimant for the letter not to include a detailed note of everything which had been said in the meeting, given the purpose of the letter.

[360]Further I could see no evidence from which I could reasonably conclude that the reason for not including reference to that discussion was materially because of any of the somethings arising in consequence of disability identified.

[361]This claim is not upheld and is dismissed. Issue:5.2.8 Between September 2021 and 19 January 2024 the amount and/or the Respondent following the departure of colleagues who left employment or were off sick, but were not replaced (those listed at 2.1.1), and her personal circumstances;

[362]The last part of this issue and her personal circumstances appears to be a non sequitur or there is some missing wording.

[363]I have found above that there were increases in workload but that these were managed by her line managers when raised by the claimant. In those circumstances, it did not seem to me that the claimant could reasonably have been felt put at a disadvantage sufficient to amount to unfavourable treatment.

[364]If there was unfavourable treatment, there was nothing I could see which suggested that any such treatment was in any way caused by the ‘somethings’ arising in consequence of the cliamant’s disabilities. The claimant may well have felt less able to deal with increases in workload due to her disabilities. A complaint of that sort would usually be a complaint of a failure to make reasonable adjustments.

[365]This claim is not upheld and is dismissed. Issue: 5.2.9 In January 2024, Suzanne Lever failing to address the Claimant’s

[366]I have found above that Mrs Lever did attempt to address the claimant’s concerns. She could have gone further and offered the claimant a meeting but equally, the claimant could have said she was concerned and asked for a meeting. It did not seem to me that in all of the circumstances the claimant could reasonably have felt put at a disadvantage,

[367]If there was unfavourable treatment, there was nothing I could see which suggested that any such treatment was in any way caused by the ‘somethings’ arising in consequence of the claimant’s disabilities.

[368]This claim is not upheld and is dismissed. Issue: 5.2.10 In January 2024, the Claimant being informed by her GP that she had

[369]This is not an act or omission of the respondent.

[370]This claim is not upheld and is dismissed. Issue: 5.2.11 On 31 January 2024, Suzanne Lever informing the Claimant that she

[371]For reasons I have set out above, I concluded that in fact Mrs Lever said there would be an informal meeting. The unfavourable treatment alleged is accordingly not made out.

[372]This claim is not upheld and is dismissed. Issues 5.2.12 On 31 January 2024, Suzanne Lever admitted to the Claimant that she had yet to look up the Absence Management Policy despite initiating the process under it to the Claimant;

[373]I have not found this complaint made out on the facts.

[374]This claim is not upheld and is dismissed. Issue: 5.2.13 On 31 January 2024, Suzanne Lever incorrectly stating to the Claimant during a call that Ms Bye was also subject to the formal ‘Stage 1’ process for longterm absence, when this was not the case.

[375]This claim is not made out in the facts and is not upheld and is dismissed. 5.6 If not, was the treatment a proportionate means of achieving a legitimate aim? The Respondent says that its aims were to manage the Claimant in accordance with the Respondent’s policies and procedures in place at the time.

[376]Giving the findings I have made, I did not have to go on to consider justification. 6 HARASSMENT RELATED TO DISABILITY (EQUALITY ACT 2010 SECTION 26)6.1 Did the Respondent do the following alleged things:

6.2 If so, was that unwanted conduct?

6.3 Was it related to the Claimant’s disability?

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

6.5 If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Issue: 6.1.1 Implement a new absence policy in April 2022 which required employees to take annual leave should they need to attend a medical appointment during working hours;

[377]As I have found above, there was no new policy. The policy contained some flexibility as to how time off for appointments was treated.

[378]The policy was not specific to the claimant and it was clearly not implemented with the purpose of having the proscribed effect on the claimant, nor could it reasonably be regarded as having that effect. A general policy of this sort which an employee does not like but which is a perfectly proper policy cannot reasonably be regarded as having the proscribed effect on that employee.

[379]This claim is not upheld and is dismissed. Issue: 6.1.2 From around 27 September 2021 to 17 February 2022, Suzanne Lever pressured the Claimant to return to work despite a full sick note dated 19 August 2021 in fortnightly calls;

[380]As set out above, I did not consider that Mrs Lever was attempting to pressure the claimant, nor do I consider that the behaviour described could reasonably have caused the claimant to feel pressured.

[381]In those circumstances, the claim fails on the facts, is not upheld and is Issue: 6.1.3 Between 1 February 2022 to 26 April 2022 Suzanne Lever ignoring the advice given on the OH Report, which she commissioned on the Claimant, and which recommended that the Claimant be left to recover for a period of 12 weeks;

[382]Mrs Lever did not ignore advice in the OH report because the report did not contain the advice alleged.

[383]This claim is not upheld and is dismissed. Issue: 6.1.4 On 17 February 2022, Suzanne Lever presented to the Claimant that a meeting on 6 April 2022 would be an informal ‘tick box’ exercise, when it was not;

[384]My findings on this matter are as described above. Mrs Lever was seeking to be reassuring. If the net result was that the claimant felt somewhat misled when she found out the meeting was a stage 1 meeting, it did not seem to me that this could reasonably have had the proscribed effect. In context the claimant could reasonable have felt concern but not that her dignity was violated or that the proscribed environment was created. It would ‘cheapen the words’ of the statute to suggest that they could reasonably apply to this situation. There was certainly no evidence of a proscribed purpose.

[385]This claim is not upheld and is dismissed. Issue: 6.1.5 In or around April 2022, the Respondent’s misapplication and/or decision to place the Claimant on a formal ‘Stage 1’ process whilst she was signed off work for health reasons in breach of its own Absence Management Policy;

[386]For the reasons set out above, I have not found there was a breach of the policy.

[387]This claim is not upheld and is dismissed. 6.1.6 The Respondent’s failure to inform the Claimant or her Union Representative that a ‘formal’ Stage 1 process meeting was being initiated until the start of the meeting on 6 April 2022;

[388]The letter inviting the claimant to the meeting did not inform the claimant that it was a meeting under stage 1 of the respondent’s policy, although she had been told it was a formal meeting.

[389]Whilst I accept that the claimant could reasonably have felt concerned about this matter, I do not accept that she could reasonably have felt that her dignity was violated or the proscribed environment was created in circumstances where the outcome of the meeting was benign and Mrs Lever was a supportive manager. There was no evidence of a proscribed purpose.

[390]This claim is not upheld and is dismissed. Issue: 6.1.7 The Respondent’s handling of the formal ‘Stage 1’ process, including its

[391]The claimant’s allegation at the hearing was that the claimant and her trade union representative’s questions about the status of the meeting were not mentioned in the outcome letter.

[392]The meeting did not lead to any formal sanction and the letter recording the outcome did not purport to be a full minute of the entire meeting. I did not conclude that this was something which a reasonable employee would consider created the proscribed effect. It was a very small issue and there were good reasons not to put the full minutes in the outcome letter. There was no evidence of a proscribed purpose.

[393]This claim is not upheld and is dismissed. Issue: 6.1.8 Between September 2021 and 19 January 2024, the amount and/or the Respondent following the departure of colleagues who left employment or were off sick, but were not replaced (those listed at 2.1.1), and her personal circumstances;

[394]My findings about the claimant’s workload are as above. Although there were times of pressure, the efforts of the managers to alleviate those when they arose show there was no proscribed purpose. I accept that the claimant was at times stressed by the workload and I accept that there may be circumstances where the workload is so heavy and/or the behaviour of managers is such that the proscribed effect can reasonably be said to have been created but that level was not reached on the facts of this case.

[395]This claim is not upheld and is dismissed. Issue: 6.1.9 In January 2024 Suzanne Lever failed to address the Claimant’s

[396]I found that Mrs Lever did attempt to address the claimant’s concerns. I did not consider that her purpose was anything other than a supportive one. Although the claimant clearly felt she had no received sufficient reassurance, she could not have reasonably have felt that her dignity was violated or that the proscribed environment was created in circumstances where Mrs Lever had responded to her correspondence and addressed her concerns but not to an extent the claimant found reassuring.

[397]This claim is not upheld and is dismissed. Issue: 6.1.10 In January 2024, the Claimant being informed by her GP that she had

[398]As above, this is simply part of the context. This claim is not upheld and is Issues: 6.1.11 On 31 January 2024, Suzanne Lever informed the Claimant that she 6.1.12 On 31 January 2024, Suzanne Lever admitted to the Claimant that she had yet to look up the Absence Management Policy despite initiating the process under it to the Claimant; 6.1.13 On 31 January 2024, Suzanne Lever incorrectly stating to the Claimant during a call that was Rochelle Bye was also subject to the formal ‘Stage 1’ process for long-term absence, when this was not the case.

[399]These claims all failed on the facts for reasons set out above.

[400]Because none of the claims succeeded on the merits, I did not have to go on to consider the time issues.