Mrs S Yusuf v Apple Retail UK Ltd: 2300538/2020 and Others

EMPLOYMENT TRIBUNALS

Case No 2300538/2020

Between

Mrs S YusufClaimant

Apple Retail UK LtdRespondent

Before

Employment Judge Truscott QC

Mr N Toms (instructed by Counsel) for claimant

Ms C Davies (instructed by Counsel) for respondent

Date 8 February 2025

REASONS

[1]This preliminary hearing was fixed in order to consider the claimant’s claim of sex discrimination and harassment contained in an ET1 which was lodged out of time.

[2]The claimant gave evidence on her own behalf. There was a bundle of documents to which reference will be made where necessary.

Findings

[1]The claimant has been employed by the respondent from 6 May 2005. Her role at the time of her allegations was as a Manager in the respondent’s store in Bluewater Shopping Centre, Dartford. Her employment is continuing.

[2]The claim relates to alleged incidents on 11 and 12 June 2019.

[3]Following the alleged incidents, the claimant raised a grievance through the respondent’s internal grievance procedure dated 24 July 2019. The procedure was still ongoing in January 2020 and did not conclude until the 26 March 2020 [94].

[4]The claimant was signed off sick on the 16 September 2019 [40].

[5]On 14 October 2019, she emailed the respondent concerned that it had failed to address her grievance in a timely manner [39].

[6]On 27 November 2019, she emailed the respondent to say that she was unable to attend the appeal meeting because of her health and requested deferment until, after 4 January [44].

[7]In consequence of the claimant receiving advice from a new trade union representative in relation to her appeal, the claimant contacted ACAS to commence early conciliation on 21 January 2020 [13].

[8]The claimant submitted her ET1 on 9 February 2020. At the time of presenting the claim, the claimant had not advanced any reason for the delay. However, further to the Tribunal’s order at a preliminary hearing on 9 April 2020, the claimant provided a witness statement in which she set out the reasons for not submitting the claim in time. The claimant gives four reasons for her failure to present her claim until 9 February 2020 which are not repeated here [35-36]. Submissions

[9]The Tribunal received written submissions from both parties and heard oral submissions from both Counsel. Law Just and equitable extension

Law

[10]Section 123(1)(b) permits the Tribunal to grant an extension of time for such other period as the employment tribunal thinks just and equitable. Section 140B of the Equality Act 2010 serves to extend the time limit under section 123 to facilitate conciliation before institution of proceedings.

[11]The Tribunal has reminded itself of the developed case-law in relation to what is now section 123 of the Equality Act 2010. That has included a group of well-known judgments setting out the underlying principles to be applied in this area, together with recent occasions on which those principles have been applied and approved by later courts and tribunals. Particular attention has been paid to the historical line of cases emerging in the wake of the case of Hutchinson v. Westwood Television

[1977] ICR 279

, the comments in Robinson v. The Post Office

[2000] IRLR 804

, the detailed consideration of the Employment Appeal Tribunal in Virdi v. Commissioner of Police of the Metropolis et al

[2007] IRLR 24

, and, in particular, the observations of Elias J. in that case, as well as the decision of the same body in Chikwe v. Mouchel Group plc

[2012] All ER (D) 1

[12]The Tribunal also notes the guidance offered by the Court of Appeal in the case of Apelogun-Gabriels v. London Borough of Lambeth & Anr

[2002] ICR 713

at 719 D that the pursuit by a claimant of an internal grievance or appeal procedure will not normally constitute sufficient ground for delaying the presentation of a claim: and observations made by Mummery LJ in the case of Ma v. Merck Sharp and Dohme

[2008] All ER (D) 158

[13]The Tribunal noted in particular that it has been held that 'the time limits are exercised strictly in employment … cases', and that there is no presumption that a tribunal should exercise its discretion to extend time on the 'just and equitable' ground unless it can justify failure to exercise the discretion; as the onus is always on the claimant to convince the tribunal that it is just and equitable to extend time, 'the exercise of discretion is the exception rather than the rule' (Robertson v. Bexley Community Centre

[2003] IRLR 434

, at para 25, per Auld LJ); Department of Constitutional Affairs v. Jones

[2008] IRLR 128

, at paras 14–15, per Pill LJ) but LJ Sedley in Chief Constable of Lincolnshire Police v. Caston said in relation to what LJ Auld said “there is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised.”

[14]The Tribunal’s discretion is as wide as that of the civil courts under section 33 of the Limitation Act 1980; British Coal Corporation v. Keeble

[1997] IRLR 336

; DPP v. Marshall

[1998] IRLR 494

. Section 33 of the Limitation Act 1980 requires courts to consider factors relevant to the prejudice that each party would suffer if an extension was refused, including: the length and reasons for the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued had co-operated with any requests for information; the promptness with which the claimant acted once she knew of the possibility of taking action; and the steps taken by the claimant to obtain appropriate professional advice once they knew of the possibility of taking action.

[15]Although these are relevant factors to be considered, there is no legal obligation on the Tribunal to go through the list, providing that no significant factor is left out; London Borough of Southwark v. Afolabi

[2003] IRLR 220

[16]Further guidance cited to the Tribunal was that the Tribunal must not make assumptions in the claimant’s favour on any contentious factual matters that are relevant to the exercise of the discretion: British Transport Police v Norman

UKEAT/0348/14

at para 39. The lack of specific prejudice to the respondent does not mean that an extension should be granted: Miller v Ministry of Justice

UKEAT/0003/15

at para 13. Where a claimant asserts ignorance of the right to make a claim, the same principles that are relevant to the 'not reasonably practicable' clause apply when considering a just and equitable extension (see Bowden v. Ministry of Justice

UKEAT/0018/17

(25 August 2017, unreported para 38); Averns v. Stagecoach in Warwickshire

UKEAT/0065/08

(16 July 2008, unreported). Accordingly, the assertion must be genuine and the ignorance – whether of the right to make a claim at all, or the procedure for making it, or the time within which it must be made – must be reasonable. It is not enough, in a case where ignorance is relied upon, for a tribunal to conclude that a claimant has not acted reasonably and promptly without specifically addressing the alleged lack of knowledge (see Averns at para 23). Nor is it correct to say that the only knowledge that is relevant when considering an extension of time is knowledge of the facts that could potentially give rise to a claim, not knowledge of the existence of a legal right to pursue compensation in respect of those facts; as a matter of law both kinds of knowledge are relevant and should be taken into account. Incorrect legal advice may be a valid reason for delay in bringing a claim but will depend on the facts of the case: Hawkins v Ball & Barclays

[1996] IRLR 258

and Chohan v Derby Law Centre

[2004] IRLR 685

. In answering the question as to whether to extend time, the Tribunal needs to decide why the time limit was not met and why, after the expiry of the primary time limit, the claim was not brought sooner than it was; see Abertawe Bro Morgannwg University Local Health Board v Morgan [2014]

UKEAT/0305/13

unreported per Langstaff J. However, in determining whether or not to grant an extension of time, all the factors in the case should be considered; see Rathakrishnan v Pizza Express (Restaurants) Ltd

(2016) IRLR 278

[17]The Tribunal has additionally taken note of the fact that what is now the modern section 123 provision contains some linguistic differences from its predecessors – which were to be found in various earlier statutes and regulations – concerning the presentation of claims alleging discrimination in the employment field. However, the case law which has developed in relation to what is now described as “the just and equitable power” has been consistent and remains valid. The Tribunal has therefore taken those authorities directly into account in its consideration.

[18]It is also a generally received starting proposition that it is for the claimant who has presented his or her claims out of time to establish to the satisfaction of the Tribunal that the “just and equitable” discretion should be exercised in the particular case. That obligation is not just a matter of the burden of proof. It also raises the question of what is the standard of proof to be established in order to persuade the Tribunal that a period other than the normal three months should be applicable. It is therefore a matter which requires evidence – which may be oral and subjected to cross examination or documentary. DISCUSSION and DECISION

[19]In this case, the alleged incidents took place on 11 and 12 June 2019. Consequently, the primary time limit expired on the 11 September 2019. The claimant did not make an application to ACAS until 21 January 2020 – a delay of just over 4 months.

[20]The four reasons advanced by the claimant for the delay are considered in turn:a. Lack of knowledge: The claimant states “in all my working life I have not had any experience of dealing with an employment tribunal or making a claim”. However, in October 2014, she had contacted ACAS to start Early Conciliation in respect of a potential sex discrimination claim relating to a request to change her hours [53-55]. The claimant said this did not make her aware of how to start the process of bringing a claim or of time limits. The Tribunal considered that this might be unlikely but reserved its position. The claimant seemed to the Tribunal to be highly competent and should know the general context for her actions.

b. Misinformed by union representative: In her written evidence, she states that she was informed of her right to bring a claim by her union representative on 7 August 2019. In oral evidence, she said this was the day of her grievance hearing and she met her union representative for an introductory coffee prior to the hearing. She said there was no discussion of time limits at this meeting. Although the oral evidence of the claimant diverged from her written statement, the oral account was more credible. After the grievance hearing on 8 August 2019, she says there was discussion with her union representative about telling the respondent she was bringing a claim. Her representative advised her that it was always a risk to threaten litigation early in a grievance process and that he thought it would be better left to the grievance appeal stage if she was unhappy with the grievance outcome [36]. The Tribunal did not have available to it the claimant’s text message to her union representative. The Tribunal considers that, as of 8 August 2019, the claimant knew either from her own knowledge from 2014, generally or from the discussion with her union representative

(i) she could bring a claim;

(ii) the first stage in doing so was to start Early Conciliation though ACAS but what she did not know was the time limit. Her oral evidence was if she had known she would have done what was necessary. In the light of the Tribunal’s assessment of the claimant, the Tribunal concluded that the claimant’s lack of knowledge of the time limit was genuine. The union representative’s approach might be a sensible tactic provided the process did not take too long. At the time of the discussion, the limitation period was well advanced and there was no date for the appeal. While the advice was not correct or sensible, it was reasonable for the claimant to rely on it at the time.

c. Tried to resolve the matter with employer; Apelogun-Gabriels makes it clear that this approach would not normally excuse a late claim however, in the light of the finding in the preceding paragraph, the present case was an exception to the normal rule.

d. Mental health and wellbeing: the claimant had a period of sickness absence which started after the expiry of the three-month time limit. On 27 November 2019, she sent the investigating manager for her appeal an email stating that she needed to defer the appeal meeting as she felt unable to attend a meeting due to her current state of ill health. In October 2019, she was acting as a carer for her mother who was undergoing experimental treatment at St Bartholomew's hospital for cancer. The Tribunal considered that these circumstances made it reasonable not to identify and act on the time limit under the second limb of the test in Morgan until the point that she did. Balance of prejudice

[21]The Tribunal, having set out its conclusions on the evidence of the claimant, turned its attention to the remaining factors.

[22]It is likely that a delay the length of the one in this case might have a detrimental impact on the cogency of the evidence in a case where the allegations are centred on oral conversations which took place over seven months before the claim was presented. Whilst, those giving evidence might struggle to remember exactly what happened in the level of detail which might have been possible had the claims been presented in time, the Tribunal did not consider that this factor tipped the balance either way. There are now long delays before a Tribunal hearing.

[23]In relation to prejudice generally, the respondent will have the prejudice of having to defend a claim. The claimant said in her Time Limits Statement that “the grievance and appeal outcome in themselves are discriminatory acts”. She has issued a new claim which has been brought within time in respect of those acts. The respondent argued that even if time is not extended, the claimant will not be left without any course of redress against the respondent as she has a second set of proceedings. Counsel for the claimant argued that this information should not be taken into account. The Tribunal did take it into account as it was in favour of the claimant because although she had a further set of proceedings, it was unlikely that those proceedings would directly examine the original incidents.

[24]On the guidance set out earlier and weighing all the relevant factors, the Tribunal considers that it is just and equitable to extend the time for lodging the claim.

Introduction

[25]Nevertheless, there must be still, in any given case, be some feature or features of the factual matrix identified by the Tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied, the Tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the Tribunal may consider it to be.22. Unite the Union v Nailard

[2019] ICR 28

was a decision of the Court of Appeal dealing with the meaning of “related to”.

23. Whether the impugned conduct is sufficiently serious to “violate” a claimant’s dignity is essentially a matter of fact for the Tribunal. However, in Richmond Pharmacology v Dhaliwal

[2009] ICR 724

Underhill P said: 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.

24. In Betsi Cadwaladr University Health Board v Hughes and others

[2013] EAT 0179

Langstaff P affirmed this view, commenting: …the word “violating” is a strong word. Offending against dignity, hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The same might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence. 25. Langstaff J said this at [21] of Weeks v Newham College of Further Education

UKEAT/0630/11/ZT

in relation to “environment”: Page 7 of 60 An environment is a state of affairs. It may be created by an incident, but the effects are of longer duration. Words spoken must be seen in context; that context includes other words spoken and the general run of affairs within the office or staffroom concerned. We cannot say that the frequency of use of such words is irrelevant. Victimisation

[26]Victimisation is defined in section 27 of the Equality Act:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. …

[27]The causal connection required is the same as in a direct discrimination claim. It is not a “but for” test but an examination of the real reason of for the treatment. As such, it is necessary to consider the employer’s motivation (conscious or unconscious).

[28]Section 212 of the Equality Act provides that a detriment does not include conduct which amounts to harassment. Consequently, although victimisation and harassment claims may be pursued in the alternative, conduct will either amount to victimisation or harassment but not both. Discrimination arising from disability

[29]Under section 15(1) of the Equality Act, a person(a) (A) discriminates against a disabled person

(b) (B) if “A treats B unfavourably because of something arising in consequence of B’s disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim”.

[30]Section 15(2) provides that there will be no such discrimination if “A shows that A did not know, and could not reasonably have been expected to know, that B had the disability”.

[31]“Something arising in consequence of” the disability should be given its ordinary and natural meaning (T-Systems Ltd v Lewis

EAT/0042/15

). In that case the EAT rejected the submission that the scope of the consequences arising from a disability is confined to things over which the employer has no control or are limited to the effects of the claimant’s disability on the disabled person rather than the employer. Page 8 of 60

[32]Mrs Justice Simler considered the causative link required by section 15 in Pnaiser v NHS England and another

[2016] IRLR 170

and then again in Shiekholeslami v University of Edinburgh

[2018] IRLR 1090

. In the latter she stated: On causation, the approach to s.15… is now well established... In short, this provision requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) something? and

(ii) did that something arise in consequence of B’s disability? The first issue involves an examination of the putative discriminator’s state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment then stage (i) is satisfied. The second issue is a question of objective fact for an employment tribunal to decide in light of the evidence.’ Duty to make reasonable adjustments

[33]The Equality Act imposes a duty on employers - referred to as A - to make reasonable adjustments to premises or working practices to help disabled job applicants and employees (section 20 of the Equality Act). A failure to comply with this duty to make reasonable adjustments is a form of discrimination (section 21 of the Equality Act).

[34]The duty can arise in three circumstances. Insofar as relevant for this case it arises: … where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (Section 20(3)).

[35]Section 20 is supplemented by Schedule 8 to the Equality Act. Paragraph 20 of Schedule 8 provides that the duty to make reasonable adjustments only arises where the employer knows or ought reasonably to know of the disabled person's disability and of the substantial disadvantage at which the person is placed. The burden of proof

[36]Section 136 of the Equality Act 2010 provides for a shifting burden of proof:(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[37]The correct approach to the shifting burden of proof remains that set out in the guidance contained in Barton v Investec Securities ltd

[2003] IRLR 332

approved Page 9 of 60 by the Court of Appeal in Igen Ltd v Wong [2005] IR 931 and further approved recently in Efobi v Royal Mail Group Ltd [201] ICR 1263.The Barton guidance is as set out below.(1) Pursuant to s 63A of the SDA 1975, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s 41 or s 42 of the SDA 1975 is to be treated as having been committed against the claimant. These are referred to below as “such facts”.

(2) If the claimant does not prove such facts he or she will fail.

(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases, the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in”.

(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.

(5) It is important to note the word “could” in SDA 1975 s 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.

(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s 74(2)(b) of the SDA 1975 from an evasive or equivocal reply to a questionnaire or any other questions that fall within s 74(2) of the SDA 1975.

(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to s 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent. Page 10 of 60

(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever” is compatible with the Burden of Proof Directive.

(12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.''

[38]There is therefore a two-stage process to the drawing of inferences of direct discrimination. In the first place, the claimant must prove facts from which the tribunal could conclude in the absence of any other explanation that the respondent had committed an act of discrimination against the complainant. If the burden does shift, then the employer is required to show a non-discriminatory reason for the treatment in question.

[39]In Efobi the Supreme Court confirmed the point that a Tribunal cannot conclude that “there are facts from which the court could decide” unless on the balance of probability from the evidence it is more likely than not that those facts are true. All the evidence as to the facts before the Tribunal should be considered, not just that of the claimant.

[40]In Madarassy v Nomura International plc

[2007] ICR 867

the Court of Appeal stated that “could conclude” must mean “a reasonable Tribunal could properly conclude” from all the evidence before it. However, that does not include evidence of the reason for any less favourable treatment (Efobi). Consequently, a Tribunal may have to draw a distinction between primary facts (which can include facts which might be an alternative reason for the treatment) and evidence about the mental processes of the decision maker (Edwards v Unite the Union

[2024] EAT 151

[41]The Court of Appeal in Madarassy also pointed out that the burden of proof does not shift simply on proof of a difference in treatment and the difference in status. This was because it was not sufficient to prove facts from which a Tribunal could conclude that a respondent could have committed an act of discrimination.

[42]In deciding whether there is enough to shift the burden of proof to the respondent, it will always be necessary to have regard to the choice of comparator, actual or hypothetical, and to ensure that they have relevant circumstances which are the same or not materially different as those of the claimant having regard to section 23 of the Equality Act. Evidence of the treatment of a person whose circumstances Page 11 of 60 materially differ to those of the claimant is inherently less persuasive than that of a person whose circumstances do not materially differ. If anything, more is required to shift the burden of proof when there is an actual comparator, it will be less than would be the case if a claimant compares their treatment with a person whose circumstances are similar, but materially different, so that there is not an actual comparator. Burden of proof in claims other than direct discrimination

[43]When the claim is not one of direct discrimination, the way in which the shifting burden of proof provision will apply depends upon the provision concerned: 43.1. In a complaint for reasonable adjustments, the burden of proof shifts when the claimant has proved that there is a PCP which puts them at a substantial disadvantage compared to a non-disabled person and, also, that there are facts from which it could reasonably be inferred in the absence of an explanation that the duty to make reasonable adjustments has been breached. As such there must be some evidence of an apparently reasonable adjustment that could have been made. 43.2. In a complaint of harassment, the claimant will need to establish on the balance of probabilities that they have been subjected to unwanted conduct which had the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. They will also need to adduce some evidence to suggest that the conduct could be related to a protected characteristic. 43.3. In a complaint of victimisation, if the claimant proves that they have done a protected act and that they have then suffered a detriment at the hands of the employer, a prima facie case of discrimination which shifts the burden of proof to the employer will be established if there is evidence from which the Tribunal could infer a causal link. 43.4. In a complaint of discrimination arising from disability, the claimant will need to establish that they have been treated unfavourably and will have to prove that the something upon which they rely arises in consequence of their disability. They will also need to adduce some evidence to suggest that the unfavourable treatment could be because of the something arising. The Employment Rights Act 1996 (“the 1996 Act”) and a claim of unfair dismissal

[44]Section 94 of the 1996 Act gives an employee the right not to be unfairly dismissed.

[45]Section 98(1) of the 1996 Act provides that, when a Tribunal has to determine whether a dismissal is fair or unfair, it is for the employer to show the reason for the dismissal and that such reason is a potentially fair reason because it falls within section 98(1)(b) or section 98(2). The burden of proof to show the reason and that it was a potentially fair reason is on the employer. A reason for dismissal is a set Page 12 of 60 of facts known to or beliefs held by the employer which cause it to dismiss the employee. “Capability” is a potentially fair reason.

[46]If the employer persuades the Tribunal that the reason for dismissal was a potentially fair reason, the Tribunal must go on to consider whether the dismissal is fair or unfair within the meaning of section 98(4) of the 1996 Act. This requires the Tribunal to consider whether the decision to dismiss was within the band of reasonable responses. Section 98(4) applies not only to the actual decision to dismiss but also to the procedure by which the decision is reached. The burden of proof is neutral under section 98(4).

[47]In considering this question the Tribunal must not put itself in the position of the employer and consider what it would have done in the circumstances. That is to say it must not substitute its own judgment for that of the employer. Rather it must decide whether the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. Ill-health dismissals

[48]The starting point for deciding whether an ill health capability dismissal is fair is Spencer v Paragon Wallpapers Ltd

[1977] ICR 301

in which Phillips said: Every case depends on its own circumstances. The basic question which has to be determined in every case is whether, in all the circumstances, the employer can be expected to wait any longer and, if so, how much longer?

[49]He noted that relevant circumstances included: …the nature of the illness, the likely length of the continuing absence, the need of the employers to have done the work which the employee was engaged to do.

[50]In any case involving long-term absence, the Tribunal will consider the adequacy of the consultation with the employee and the steps taken by the employer to establish the true medical position. The EAT stressed the importance of these matters in East Lindsey District Council v Daubney

[1977] ICR 566

[51]Those two rather old authorities were considered and approved relatively recently in BS v Dundee City Council

[2014] IRLR 131

CSIH by the Inner House of the Court of Session. At [27] it observed that three important themes emerged from Spencer and Daubney: …First, … it is essential to consider the question of whether the employer can be expected to wait longer. Secondly, there is a need to consult the employee and take his views into account. … this is a factor that can operate both for and against dismissal. If the employee states that he is anxious to return as soon as he can and hopes that he will be able to do so in the near future, that operates in his favour; if, on the other hand he states that he is no better and Page 13 of 60 does not know when he can return to work, that is a significant factor operating against him. Thirdly, there is a need to take steps to discover the employee’s medical condition and his likely prognosis, but this merely requires the obtaining of proper medical advice; it does not require the employer to pursue detailed medical examination; all that the employer requires to do is to ensure that the correct question is asked and answered.

[52]Turning to the question of whether dismissal is a fair sanction, a variety of factors may need to be weighed up in considering whether the dismissal if reasonable under section 98(4) of the 1996 Act. These may include: 52.1. the nature of the illness and the job; 52.2. the applicability and clarity of an employer ill health policy; 52.3. the needs and resources of the employer; 52.4. the effect on other employees; 52.5. the likely duration of the illness. 52.6. how the illness was caused. 52.7. the effect of sick-pay and permanent health insurance schemes; 52.8. alternative employment; and 52.9. length of service (provided it is relevant to one or more of the other factors). Ill health caused or exacerbated by the employer’s treatment

[53]The leading case in circumstances where the claimant’s ill health has been caused by the employer is McAdie v Royal Bank of Scotland

[2007] EWCA Civ 806

. It is authority for the proposition that if an employee’s ill health was caused by the employer that might justify a Tribunal requiring the employer to demonstrate extra concern before implementing a dismissal, but that this remains a question of fact, not a rule of law.

[54]The EAT (with whom the Court of Appeal agreed) noted that in such a case: It may, for example, be necessary in such a case to “go the extra mile” in finding alternative employment for such an employee or to put up with a longer period of sickness absence than would otherwise be reasonable.

[55]However, the EAT noted that in the end the question is whether the employer acted reasonably: the fact that an employer has caused the incapacity however culpably cannot preclude it forever from effecting a fair dismissal.

[56]In L v M

UKEAT/0382/13

(16 May 2015, unreported) the EAT accepted that the McAdie principle applied equally to cases where the employer’s conduct had exacerbated (rather than caused) an illness. Findings of fact Page 14 of 60

Findings of fact

[57]These findings of fact do not of necessity refer to all of the evidence that was before the Tribunal. As in many cases, the bundle was of excessive length and contained many irrelevant documents. The Tribunal made plain at the outset that it would not necessarily read pages contained in it that were not referred to in the witness statements or during the course of the hearing. General background findings

[58]The claimant began employment with the respondent in May 2005. She initially worked in the Bluewater store of the respondent and was promoted to the role of Manager there. She was moved to the respondent’s store in Bromley on 6 July 2020.

[59]Mr Kistner was a Senior Manager in the Bluewater store. Two incidents took place between the claimant and Mr Kistner on 11 and 12 June 2019. We turn to those incidents in more detail below. However, we note that there was some doubt about whether the first incident actually took place on 10 or 11 June 2019. Nothing turns on that and so we refer, as the parties mainly did, to the first incident as having occurred on 11 June 2019. A brief chronology

[60]A brief summary of the chronology of events thereafter reasonably includes the following: 24 July 2019 Claimant presents three grievances (page 352) 7 August 2019 Claimant attends grievance hearing with Ms Boyd (page 585) 23 October 2019 Ms Boyd rejects the claimant’s grievances (page 617) 29 October 2019 Claimant appeals the outcome of the grievances (page 632) 9 February 2020 Claimant presents first Tribunal claim 6 February and 10 Claimant attends grievance appeal hearing with Mr Bever February 2020 26 March 2020 Mr Bever rejects most but not all of the claimant’s appeal against the outcome of the grievances (page 691) 6 July 2020 Claimant moves to the respondent’s Bromley store. 14 August 2020 Claimant presents second Tribunal claim 13 October 2020 Preliminary hearing in relation to the question of time 30 March 2021 Final hearing in first and second Tribunal claims listed for 17-21 January 2022 10 January 2022 Claimant’s period of sickness absence begins Page 15 of 60 12 January 2022 Tribunal postpones the January 2022 hearing (costs bundle page 70) 10 May 2022 Occupational health appointment (OH report prepared the same day) (page 937) 21 July 2022 Occupational health appointment – did not go ahead (page 953) 29 July 2022 Mr Dinnage says he will shortly invite claimant to an incapacity meeting (page 972) 11 September 2022 Claimant cancels OH appointment scheduled for 19 September (page 1013) 4 October 2022 Claimant attends incapacity meeting with Mr Dinnage (page 1041) 1 October 2022 to Claimant on annual leave 23 November 2022 23 November 2022 Claimant attends outcome meeting at which she is dismissed (page 1098), dismissal letter dated the same date (page 1093) 28 November 2022 Claimant appeals dismissal (page 1110) 9 February 2023 & Hearing of appeal against dismissal (page 1169) 21 February 2023 21 February 2023 Claimant presents third Tribunal claim 19 April 2023 Ms Parsons rejects the claimant’s appeal against her dismissal (page 1217) Credibility of the witnesses

[61]The claimant: The Tribunal finds that the credibility of the claimant was damaged by the following matters: 61.1. Her account of the incidents on 11 and 12 June as set out in written documents which she prepared evolved in a way which damages her credibility. The first time she committed her account to any document included in the bundle was her Exchange Journal entry of 27 June 2019 (page 303). She makes no reference to aggression or being intimidated. She also makes no reference at all to the incident of 12 June 2019 in which she ultimately claimed she was prevented from leaving a room. What she in fact records is in effect a complaint about how Mr Kistner gave her feedback on 11 June 2019. She was told to “sssshhhhh” (“shush”) and Mr Kistner had used it as “an opportunity to vent his emotion”. The description of the 11 June incident is significantly different in the grievance (page 354), with references to aggression and the invasion of personal space appearing, and different again in the witness statement with references to her feeling Mr Kistner’s “breath and saliva”. Equally, the incident of 12 June, having not been mentioned at all in the Exchange Journal entry, is then described in the grievance as involving Mr Kistner not allowing her to leave the room where they were meeting (page 354). Overall, it is the obvious differences between her account in the Exchange Journal and that set out in later documents and her witness evidence which damage her credibility. First, the account in the later Page 16 of 60 documents make the alleged incident of 11 June 2019 sound much more serious. Second, the alleged incident of 12 June 2019 is obviously the more serious of the two and yet it was not mentioned at all in the Exchange Journal. 61.2. Further and separately, her oral evidence was marked on a number of occasions by implausibility. For example, her explanation of why she had not recorded the 12 June incident (which she said involved her being prevented from leaving a room) in the Exchange Journal (“I didn’t have time”); 61.3. Further and separately, her oral evidence was marked on a number of occasions by denying what was obviously true. For example, the notes of a meeting at page 214 record her as having said in January 2018 that “To be honest, because of a previous incident with Damien we have got a broken relationship”. It was put to her that those were strong words to use and she replied, “I don’t believe they are strong words…”. This reflected her general unwillingness to make any concessions when being cross-examined. 61.4. Further and separately, at times she appeared to seek to tailor her case in response to possible evidential difficulties. For example, shortly after saying that the reason she had not recorded the incident of 12 June 2019 in the Exchange Journal was because “I didn’t have time”, she went on to assert quite improbably that the incident of 12 June 2019 was not relevant to the PTSD she said she had; that, she said, had been caused by the incident on 11 June alone. This was not only apparently inconsistent with what she had said to Mr Dinnage on 4 October 2022 (page 1048) but also improbable, given that her description of the incidents of 11 and 12 June 2019 as set out in her grievance and witness statement suggested that the one on 12 June 2019, when she had been prevented from leaving a room, was the more serious. 62.Ms Robinson: we found Ms Robinson to be a largely credible witness. She made sensible concessions about the obvious limitations of her written witness evidence. 63.Mr Simpkin: the question of credibility barely arises in relation to the evidence of Mr Simpkin, which was largely opinion evidence – setting out how he, as a union officer, would have expected things to have been done. 64.Mr Kistner: we found Mr Kistner to be a largely credible witness. He generally engaged with rather than sought to evade difficult questions, for example he freely accepted that an absence of Ms Blowey resulted from a conversation that he had had with her. However, on occasion his credibility was negatively affected by denying something that was obviously true. For example, he disagreed with the statement that it was “not retaliation” to raise a grievance about things that had been done wrongly. 65.Ms Boyd: we found Ms Boyd to be a credible witness. She made sensible concessions – for example, that she could have asked Mr Nicholls additional questions about certain matters. Overall, her evidence was considered and generally consistent. Page 17 of 60 66.Mr Bever: we found Mr Bever to be a credible witness. He was careful and measured in his answers and generally very consistent. He made sensible concessions where relevant, for example in relation to whether a particular witness could have been interviewed by video once the Covid pandemic was under way. 67.Mr Dinnage: we found Mr Dinnage to be a largely credible witness, because his oral evidence was generally consistent with the documentary evidence and because he made a number of sensible concessions when being cross-examined, for example that the claimant could not be blamed for being thrown by the contents of the occupational health referral when they were read out to her at the appointment in July 2022. 68.Ms Parsons: we found Ms Parsons to be a credible witness. This was in particular because she made a number of realistic concessions in her evidence. Findings in relation to the specific allegations relating to 2019 and 2020 11 June 2019 incident

[69]The incident on 11 June 2019 took place because Mr Kistner had decided to give the claimant feedback. The giving of feedback is a significant part of the respondent’s corporate culture. The Tribunal finds, however, that Mr Kistner did not choose his time to give the claimant feedback sensibly. She had just told him that she had had a large argument with her husband. The Tribunal finds that Mr Kistner was not an emotionally intelligent manager. 11 June 2019 was not a sensible occasion on which to give the claimant feedback of the kind Mr Kistner intended to give.

[70]Equally, however, the Tribunal finds that the claimant did not like to receive feedback and would tend to become argumentative or defensive when she did. We so find because of what a number of the employees interviewed by Ms Boyd during the subsequent grievance investigation said. To pick but one example, amongst a considerable number, Ms Goldsworthy stated (page 484) that: At a later date discussed feedback regarding coaching with her, I shared that I won’t always tell you with feedback you [sic] as when I do you go on the defensive, sometimes I will choose to ask questions but I won’t wrap it up with can I give you feedback as in past I get confrontation and a defensive nature.

[71]Overall, the Tribunal finds that, when Mr Kistner tried to give the claimant feedback on 11 June 2019, she reacted negatively and did not wish to listen. The Tribunal finds that Mr Kistner was frustrated by this. However, the Tribunal finds that Mr Kistner did not shout at the claimant, was not aggressive towards the claimant and did not shake his finger in her face. We do find, however, that Mr Kistner put his finger to his lips and shushed the claimant several times. The Tribunal makes these findings for the following reasons: 71.1. In light of our credibility findings above, we generally found Mr Kistner to be a more credible witness than the claimant – this is of particular relevance because there was no eyewitness to the incident. Page 18 of 60 71.2. We find that if Mr Kistner had acted as the claimant alleges, she would have raised the matter promptly and not simply referred to it as she did in the Exchange Journal two weeks later, before waiting several weeks more before raising a grievance. This is all the more the case given the serious nature of her allegations in relation to 12 June 2019, to which we turn below. 71.3. Whilst we find that there is evidence of Mr Kistner losing his composure on other occasions, we do not find that even now there is any significant evidence of him becoming aggressive and making physically threatening gestures as alleged by the claimant. 71.4. With regard to this point, we note that Ms Blowey (page 773) did not attribute periods of sickness absence due to stress that she had had after interacting with Mr Kistner to aggressive or threatening behaviour. Her interview makes plain that she felt threatened by being told that she would be put on a PIP if her performance did not improve. It was (in her words) “the content” of what was said, rather than how it was said. So far as Ms Loi was concerned, in her interview with Mr Bever (page 772) she makes no mention of threatening or aggressive behaviour by Mr Kistner. Consequently, although Mr Kistner accepted in cross-examination that she had taken a period of sick leave due to stress after he had given her feedback about being unapproachable, we find that she herself did not regard this as following aggressive or threatening behaviour by Mr Kistner. So far as Ms Robinson is concerned, her evidence in chief went no further than saying that he had made her feel “dismissed and unheard” and that at times his responses felt like “subtle microaggressions” (which she accepted in cross-examination was different to aggressive behaviour, agreeing as she did that micro-aggressions were “almost imperceptible”). Further, her witness statement is generalised with few specifics. Overall, it does not suggest that Mr Kistner behaved in a threatening or aggressive manner towards her. She did not replicate in it the allegations contained in the further and better particulars prepared by the claimant at page 33, despite her witness statement which was professionally prepared being the obvious opportunity to do this. We attach little weight to her belated confirmation at the end of her oral evidence that the allegations set out at page 33 were accurate; 71.5. So far as shouting is concerned, Ms Prestidge in her interview with Ms Boyd believed that she might have heard the claimant, but not Mr Kistner, shout on or around 11 June 2019 (page 557). None of the possible witnesses had heard Mr Kistner shout; 71.6. By contrast, however, there was relevant contemporaneous evidence in relation to whether Mr Kistner had shushed the claimant – in particular the evidence of Mr Forrester (page 453) and Ms Goldsworthy (page 485) during their interviews with Ms Boyd. 71.7. If Mr Kistner had acted as the claimant contends, the Tribunal finds that it is inherently improbable that she would have instigated a meeting with him on the following day in a small room with no windows. Page 19 of 60 12 June 2019 incident

[72]The Tribunal finds that on 12 June 2019 the claimant asked Mr Kistner if she could ask him for some advice. He agreed and they went to speak in a small room with no windows, with Mr Kistner following the claimant.

[73]The Tribunal finds that in fact the claimant did not wish to ask Mr Kistner for advice but rather wished to remonstrate with him in relation to the feedback which he had given her on the previous day. We find that this led to frustration on the part of Mr Kistner and an exchange of views.

[74]We find, however, that Mr Kistner did not intimidate the claimant with his behaviour by shouting at her, aggressively waving his hands around and refusing to let leave her the room.

[75]We prefer the evidence of Mr Kistner to that of the claimant in relation to this incident because, for the reasons given above, we found him to be a more credible witness. Further, we find that it is implausible that the claimant would not have mentioned the fact that Mr Kistner had physically prevented her from leaving the room sooner than she did if that had happened. Objectively speaking, it is the most serious of the allegations made against him. 76.We do not, however, find that the claimant has acted dishonestly in making and maintaining her allegations in respect of 11 and 12 June 2019. We accept that the claimant may well have subsequently come to believe that Mr Kistner’s behaviour was aggressive and intimidating when in fact, objectively viewed, it was not. Clearly, on both occasions they had a difference of views. Further, there was no dispute that on 12 June 2019 Mr Kistner was sitting closer to the door than the claimant. We can see how their respective physical locations in relation to the door could in the claimant’s mind have become Mr Kistner refusing to allow her to leave the room even though that was not in fact the case. The investigation of the grievances against Mr Kistner

[77]We have focused our findings on the criticisms made of the investigation in the claimant’s skeleton argument (its [93]). 78.Failure to interview four women identified by claimant as having received similar treatment from Mr Kistner: this is a complaint that Ms Boyd failed to interview four women (Ms Blowey, Ms Loi, Ms Robinson and Ms Mirza) who the claimant said had received similar treatment from Mr Kistner. We have concluded that this failure did not make the investigation inadequate for the following reasons: 78.1. First, the original grievance (page 353) does not refer to sex discrimination (and therefore does not highlight the potential relevance of the treatment of other women). 78.2. Secondly, the women were identified in an amended version of the notes that the claimant had read from at the grievance hearing (page 400) as being Page 20 of 60 people who had experienced aggression by Mr Kistner. However, the claimant does not place any great emphasis on them being interviewed in her covering email at page 397. She does not identify them by name in the email and says: “please feel free to reach out to these interval individuals as you see fit”. 78.3. Thirdly, Miss Boyd’s explanation for why she did not interview them was entirely reasonable. She pointed out that she was tasked with investigating three separate grievances covering very considerable factual ground and she had, in principle, chosen to interview employees who were or might be witnesses to the actual events complained of. There was no suggestion that the four employees identified were such witnesses. Rather, the suggestion was in effect that they might be interviewed in order to establish a pattern of behaviour which would have supported the likely truth of the claimant’s allegations. 78.4. We do not accept that the inconsistency between paragraph 16 of Ms Boyd’s witness statement and her oral evidence is such as to damage her credibility. In paragraph 16 she says: I do not recall [the claimant] asking me to interview Jess Loi, Sarah Blowey or Rushina Robinson during the grievance investigation meeting. I do not believe she mentioned these names to me, I am confident I had not heard them before Julian asked me about them during the appeal process. I do remember that [the claimant] brought up Nyla Mirza’s own circumstances. 78.5. When cross-examined, she accepted that this was wrong because, although she could not recall the claimant mentioning the four women in the grievance meeting, the claimant had mentioned them in the amended notes (page 400) that had been sent to her after the grievance meeting. This is an entirely credible explanation for the inconsistency given that the witness statement was prepared some 2 ½ years after the event and in light of what we have found in [78.2] above. 78.6. Overall, as Ms Boyd put it herself, it was necessary to draw the line somewhere in terms of who was to be interviewed. The process she undertook involved 15 interviews. In all the circumstances, it cannot be said that the failure to interview the four employees in question meant that the investigation was inadequate. 79.The adequacy of Ms Boyd’s notes: the notes of the grievance meeting between the claimant and Ms Boyd were at page 387. They ran to only seven pages although the meeting had lasted for three and three-quarter hours. They are not an attempt at a verbatim record and do not purport to be. However, they refer regularly and quite specifically to the 50 pages of notes that the claimant took to the meeting and from which she had read during the meeting (for example at page 391 the notes referred to specific sections of the 50 pages of notes). We find that this was a sensible way of incorporating relevant sections of the 50 pages of notes into the notes of the grievance meeting. They would have been little point in Ms Boyd retyping the relevant sections of the 50 pages of notes. We further note that the Page 21 of 60 claimant was given an opportunity to comment on the accuracy of the minutes and did so (her email of 17 September 2019 at page 593 – “I have read the notes that you sent over and I have made amendments where required (Attached)”).

[80]The claimant commented in her witness statement on the length of the minutes of her meeting compared to those of other meetings conducted by Ms Boyd during the grievance process. However, this ignores two points. First, Ms Boyd was generally accompanied by a note taker in those other meetings. It is always easier for a full note to be prepared when the notetaker is not one of the main participants. Secondly, Ms Boyd’s notes in effect incorporate the additional 50 pages, where relevant, of notes provided by the claimant. In all the circumstances, we find that the notes that Ms Boyd took were not inadequate. 81.Ms Boyd failing to ask people if they had seen Mr Kistner treat women differently: we note again that the formal grievance as set out at pages 353 to 354 was not one of sex discrimination, although the claimant went on to raise questions in relation to how Mr Kistner treated women. Ms Boyd interviewed a considerable number of people about the specific factual allegations made by the claimant about her own treatment. In all the circumstances, we find an adequate investigation did not require Ms Boyd to make general enquiries of those she interviewed in relation to whether they believed Mr Kistner treated women differently. We note in this respect that in any event around forty percent of those interviewed were women. It was reasonable for her to simply ask interviewees whether they had seen the incident in question and then to ask open questions about whether they had seen him acting aggressively towards anybody as Ms Boyd did, for example, in her interview with Mr Forrester (page 452), Ms Goldsworthy (pages 484-486), and Ms Farrar (in relation to acting aggressively – page 504). 82.Ms Boyd allegedly failing to pursue lines of inquiry which indicated that Mr Kistner had been threatening and lost his composure in the past: we find that an adequate investigation did not require this. Realistically, asking the interviewees whether he had acted aggressively covered the question of whether he had been threatening (which is not a word used in the grievance). There was no dispute that he had lost his composure in the past – he freely admitted this in his own interview with Ms Boyd (page 473). 83.Ms Boyd allegedly taking too long to investigate: Ms Boyd took 13.5 weeks to deal with the three grievances. The respondent’s policy (page 356) does not set out a detailed timescale but provides that “within a reasonable time following the hearing or investigation, you will receive in writing the outcome of the grievance and any recommendations”. She had to investigate three grievances covering substantial factual ground and including serious allegations. She undertook fifteen interviews and the whole process overlapped very substantially with the summer holiday period. She made some attempts to keep the claimant informed of her progress. We find that in all these circumstances Ms Boyd did not take “too long”. 84.Ms Boyd allegedly interviewing irrelevant people who were likely to undermine the claimant’s case: Ms Boyd had not met the claimant prior to hearing the grievance and did not work in the South-East Market (“Market” is the word the respondent uses instead of “region”). We find that her choice of witnesses Page 22 of 60 was informed above all by her understanding of who might have been witnesses to the various factual incidents that the claimant complained of. We find that she did not interview people who she should have known would be irrelevant or who she thought would undermine the claimant’s case.

[85]Taking matters in the round, whilst it is always possible to suggest that pursuing or not pursuing certain lines of investigation might improve the quality of an investigation, we find that Ms Boyd approached her task diligently and that the investigation was significantly better than “adequate”. The grievance decision of 23 October 2019

[86]The grievance outcome was dated 23 October 2019 (page 617). Ms Boyd did not uphold either of the claimant’s grievances relating to Mr Kistner. So far as the grievance concerning inappropriate comments that the claimant said Mr Kistner had made about her skin colour, Ms Boyd concluded: I do not uphold this part of the grievance as there is no evidence to suggest inappropriate comments were made as you described.

[87]So far as the grievance concerning the events of 11 and 12 June 2019 were concerned, Ms Boyd concluded: I can conclude that there is no evidence to suggest that Damian was aggressive towards you or towards women therefore I do not uphold this part of the grievance, however I do have recommendations from the findings that will support improving the relationship moving forward.

[88]This conclusion relates mainly to the 11 June 2019 incident. The grievance outcome did not include an express finding about whether Mr Kistner had shushed the claimant.

[89]So far as 12 June 2019 is concerned, Ms Boyd concluded: I do not uphold this part of the grievance as it is clear from my ﬁndings that Damien did not block the door, was not aggressive and that you have had very little time with Damien since returning from holiday. The investigation of the claimant’s appeal of 29 October 2019 against the grievance

outcome

[90]The claimant appealed the grievance outcome on 29 October 2019 (page 632). She provided further details of her grounds of appeal on 11 November 2019 (page 635).

[91]The criticisms of the claimant in relation to the grievance investigation are at paragraph 98 of the claimant’s skeleton argument. Again, we focus our findings on the specific criticisms made. Page 23 of 60 92.Failure to investigate the issues with the notes of the Claimant’s grievance hearing: in light of our findings above in relation to the lack of merit of this point, we find that Mr Bever dealt with it adequately and this is reflected in his express finding in relation to the issue under the heading “Process” in his decision (page 699).

[93]Failure to interview all of the four people mentioned by the Claimant: Mr Bever interviewed Ms Loi (page 772) and Ms Blowey (page 773). He had not been given specific incidents to put to either of them. He asked them both: “Have you ever experienced a member of the team at Bluewater losing their composure and making either yourself or others feel uncomfortable or threatened”. The evidence of Ms Loi was that she had not but had witnessed a heated conversation between the claimant and a “genius” (a term used for a colleague performing a particular role). Ms Blowey, as we have found above, described an incident when Mr Kistner had told her that she would be put on a PIP and said that this “made me feel I was being threatened…”. She said this played on her mind and she ended up being signed off with stress and anxiety. When asked “why did you feel threatened” she answered “It was the content, my nature is to worry, it was if this doesn’t change we do the PIP etc. It felt like it was being used a threat”.

[94]We find that Mr Bever had intended to interview the other two employees named by the claimant: Ms Robinson and Ms Mirza. We find that one of them was off work sick and that he did not interview the other because the respondent closed its stores because of the pandemic and so no face-to-face interview was possible.

[95]In all the circumstances, we find that the failure to interview Ms Robinson and Ms Mirza did not result in the appeal investigation being inadequate for the following reasons. First, the claimant had provided very little information to Mr Bever about the details of the evidence that the four witnesses might provide (page 635) beyond that he had allegedly been aggressive to them. However, the two that Mr Bever had interviewed (Ms Loi and Ms Blowey) had provided no such evidence. Secondly, because of the very limited information that the claimant had provided, there were not matters in relation to Ms Robinson and Ms Mirza which it was obviously important for Mr Bever to put to them in light of the contents of the grievance. Thirdly, the claimant had already at the very least hinted that her grievance was taking too long (her email of 29 October 2019 at page 632). Fourthly, the explanations provided for not interviewing the two witnesses were, given these matters, reasonable: waiting to interview an ill employee could have caused significant delay and, at the beginning of the covid era, it was simply not the norm to consider (as it is now) whether a face-to-face interview can be replaced by a video call. 96.Failure to ask appropriate questions when interviewing two of those people: we find that asking the open question set out above was not inappropriate when Mr Bever had no detailed allegation of misbehaviour to put to the interviewees for them to comment on. Or, to put it differently, the question asked could reasonably have been expected to elicit an account of any occasion on which they, as women, had been treated aggressively or otherwise inappropriately by Mr Kistner. Page 24 of 60 97.Asking different questions to different people, knowing what response he was likely to receive: we find that Mr Bever did not do this. We find he tailored his questions appropriately. The weakness of the criticism was illustrated by Mr Bever’s reply when asked why he had identified Mr Kistner when asking Mr Forrester “have you seen Damien ever demonstrate aggressive behaviour”. It was suggested that he had identified Mr Kistner because he knew that if he did this Mr Forrester would answer “no”. Mr Bever explained, convincingly, that he had in fact named Mr Kistner because Mr Forrester was sufficiently involved in the process to know that it was Mr Kistner’s conduct that was being investigated.

[98]Ignoring the evidence which supported the Claimant’s grievance: we find that Mr Bever did not ignore the evidence that supported the claimant’s grievance. For example, he clearly wrestled with the question of the PIP (concluding that there was “not enough clarify on how these competency opportunities manifest as a performance gap” (page 695)) and, indeed, he upheld part of the grievance relating to the PIP (page 700). Equally, he also paid careful attention to the evidence concerning 11 June, making an express finding (which Ms Boyd had not) that Mr Kistner had shushed the claimant (page 699). The decision simply does not support the contention that Mr Bever ignored evidence supporting the claimant’s grievance.

[99]The investigation took too long: the detailed grounds of appeal were provided on 6 November 2019 (page 634). Mr Bever conducted an 8-hour meeting with the claimant spread over two days and interviewed a number of additional witnesses before sending the claimant a detailed 10-page decision on 26 March 2020. As such it took just over 3.5 months for the appeal to be completed. We find that this was not “too long” in light of the contents of the respondent’s relevant procedure and all the circumstances of the case: it was a complex appeal raising numerous issues.

[100]Overall, we conclude that the investigation that Mr Bever carried out was a significantly more than adequate investigation in all the circumstances. The decision of 26 March 2020 not to uphold the appeal against the grievance outcome

[101]Mr Bever rejected the claimant’s appeal against the outcome of her grievances, except in relation to the Warn PIP process. In relation to that point, he concluded: I am upholding your grievance that this Warn PIP was not of the quality you should reasonably expect in order to support your success in improving your performance. I recommend the current Warn PIP is withdrawn, and you are given a clear articulation of all the current performance concerns including a clear and specific articulation of the performance gap.

[102]As noted above, he also made a finding that the claimant had been shushed but did not uphold the part of her grievance appeal in relation to 11 June 2019. The events in 2022 and 2023 ending with the claimant’s dismissal Page 25 of 60 July 2020 to January 2022 and Mr Dinnage’s knowledge of the claimant’s first and second claims

[103]As noted above, the claimant was transferred from the respondent’s Bluewater store to its Bromley store in July 2020 and her employment proceeded without great incident until January 2022. She had some periods of sickness, but these were largely due to Covid. There was, as such, a period of nearly 18 months when the claimant’s employment continued without any significant day-to-day difficulties.

[104]We find that Mr Dinnage, the Store Leader of the Bromley store, knew that the claimant had brought a Tribunal claim against the respondent arising out of her employment at the Bluewater store, but we accept his evidence that he did not have any details of it because a decision had been taken that the less he knew about it the better. We find, again in accordance with his evidence, that he understood it to be a race discrimination claim by late 2020 following other employees at the Bromley store finding a copy of the judgment relating to the preliminary hearing on time limits in late 2020. January to April 2022

[105]The final hearing of the first and second claims was due to take place in January 2022 but was postponed on 12 January 2022 following a successful application for reconsideration by the respondent of the Tribunal’s previous refusal of an application to postpone. In broad terms, in its successful application for a reconsideration the respondent set out circumstances explaining why Mr Kistner had not been informed of the final date of the hearing at an earlier stage and so had booked a holiday during it (page 70 of the costs bundle). No detailed reasons were provided by the Tribunal for its decision.

[106]We find that the claimant was very upset indeed by the postponement of the final hearing. We find that this upset was a factor in the period of sick leave which began on around 10 January 2022, and which continued, more or less uninterrupted, until 30 September 2022. She was signed off with “anxiety disorder, stress and truma” [sic] for 6 weeks from 14 January 2022 (page 899), then again for the same reasons from 25 February to 22 April 2022 (page 912), then again for the same reasons from 6 May 2022 to 17 June 2022 (page 936), then again for the same reasons from 17 June to 27 July 2022 (page 941) and finally, again for the same reasons, from 28 July 2022 to 30 September 2022 (page 954). The claimant was particularly unwell in January 2022 and was for a short period an inpatient at The Priory. During this period the claimant was also diagnosed as having fibroids which necessitated an operation on 13 June 2022.

[107]During the initial period of sickness absence beginning in January 2022 Mr Dinnage maintained contact with the claimant and on 23 March 2022 asked for her consent for a referral to Occupational Health. The claimant gave this consent 19 April 2022 (page 926).

[108]The claimant attempted to return to work on 27 April 2022. Mr Dinnage met her in a café near the Bromley store and they had a lengthy conversation. We find that during this conversation the claimant made substantial criticisms of how Mr Page 26 of 60 Dinnage had managed her well-being during her absence. We find that the claimant became very upset during the conversation and described her recent mental health in terms that alarmed Mr Dinnage. We find that the claimant and Mr Dinnage were both of the view in light of the conversation they had had that the claimant was not well enough to return to work. We find that during this conversation Mr Dinnage understood that the claimant’s concerns in relation to how she had been treated by the respondent were no longer limited to the treatment that she alleged she had suffered at the hands of Mr Kistner at the Bluewater store. We find that he understood the claimant to be expressing a wider dissatisfaction with how she had been treated by the respondent, including by Mr Dinnage, not only during her employment at the Bluewater store but more recently during her employment at the Bromley store. To the extent that this requires us to prefer the evidence of Mr Dinnage to that of the claimant, we do so because in light of our findings above in relation to credibility, we found him overall to be a more credible witness. Further, it is clear that the claimant was extremely upset on 27 April 2022 and this is likely to have affected the clarity of her recollection of what exactly she said.

[109]Part of the reason for the claimant attempting to return to work in April 2022 was an understanding gained from Mr Dinnage that her sick pay was about to expire. However, on further investigation, this was established not to be the case and Mr Coombs, another Senior Manager at the Bromley store, told the claimant this in a meeting on 2 May 2022. The claimant “opened up to him” about her mental health (her witness statement [28]).

[110]In the event, the claimant did not return to work in April or May 2022 The May and July 2022 occupational health referral

[111]The claimant attended an occupational health appointment on 10 May 2022 and a report was prepared that same day (page 937). The contents of the report included the following: Whilst I am hopeful that the ongoing therapy will help to promote her recovery, I think it unlikely that she will make a full recovery until her work-related concerns have been addressed to her satisfaction. However, at the present time I do not believe she is sufficiently emotionally robust to engage with the business to try to resolve the situation. I advise management to maintain contact with her in accordance with the business attendance policy and to refer her for further Occupational Health advice in approximately 8 weeks to allow time for her to respond to the ongoing therapy and for some improvement in her psychological well-being. I am hopeful that at this point she may be sufficiently well to enable her to engage with the business to try to resolve her concerns and facilitate a return to work.

[112]In response to the question “what are the medical recommendations regarding her phased return and ongoing working based on her conditions” the report stated: Page 27 of 60 Having assessed her today, I am of the opinion that she is experiencing significant symptoms of Anxiety and Depression which would be a barrier to her being able to return to work in any capacity at present time. There are no steps that I can suggest that would currently expedite a return to work.

[113]Mr Dinnage made a further occupational health referral in July 2022 (page 1308). In the section headed “Please give further details of reason for referral” he wrote: [The claimant] has been absent from work for over seven months with a brief spell on a phased return prior to that which was preceded [sic] another spell of absence of two months. [The claimant] has had high levels of absence across the past five years, largely due to stress, anxiety and PTSD.…

[114]The claimant says that this was inaccurate because she had had two absences for mental health; the rest were mostly Covid related. The claimant’s absence record was at page 1524. We find that, whilst the section quoted is perhaps carelessly drafted, it is for the purposes of the referral not materially inaccurate. By any sensible measure, the claimant’s absence level over the previous five years was high. Further, the longest and most recent absences had been described in the fit notes as being due to “stress, anxiety and trauma” (see [106] above). Consequently, whilst the section could have been more forensically drafted, we find that it was not materially inaccurate or misleading.

[115]In the section inviting him to ask additional questions, Mr Dinnage included the following: … Is there anything else we could do to support [the claimant] in returning and sustaining a return to work? [The claimant] has cited previously that Apple itself is a trigger for her mental health, how do you envisage we can support her to work through this to allow her to work at Apple again? Are you able to advise on how best to support a return to work for the EE, as it is unavoidable to mention or acknowledge Apple in EE’s day-to-day role as they work in an Apple Store.

[116]The claimant contends that this is inaccurate because she had never said “Apple is a trigger for her mental health” to Mr Dinnage or anyone else. We set out some of the correspondence between the claimant and Mr Dinnage in relation to this matter below. We find that whilst the claimant may never have intended to communicate to Mr Dinnage that Apple itself was a trigger for her mental health in the way that Mr Dinnage suggests in the referral (“it is unavoidable to mention or acknowledge Apple…”), Mr Dinnage had thought that the claimant’s issues with the respondent were far wider than issues arising with Mr Kistner as a result of the June 2019 incidents. We refer to our findings at [108] in this respect. We find that Mr Dinnage believed that Apple itself had become a trigger for her mental health.

[117]The same section continues in a rather stream of consciousness style to ask a whole series of further questions. Page 28 of 60

[118]The occupational health appointment took place on 21 July 2022 and Dr Rashid, the Occupational Health Physician with whom the claimant had spoken, wrote to Mr Dinnage on the same day (page 953). Their letter explains that the claimant had been unaware “of the context and specific concerns” mentioned in the referral and went on: She also mentioned that there are several inaccuracies in the referral. In the course of the subsequent conversation with her it was evident that – whatever engagement she and management may have had that thus far – she had not had adequate time to prepare for the consultation, or be in a position to meaningfully consent and engage with it. It is good medical practice for the employee to be aware of the contents of the referral letter prior to undertaking an occupational health assessment. I have said to [the claimant] that it will be important that she and management engage one another in the first instance about the management concerns indicated in your referral. If after that she and you feel that further attempt at an occupational health assessment would be helpful, then we would be delighted to organise a further appointment for her at that stage. The occupational health process after 21 July 2022

[119]After the aborted occupational health appointment of 21 July 2022 there followed significant correspondence between the claimant and Mr Dinnage. In his email of 29 July 2022 (page 972), Mr Dinnage stated that The purpose of the referral was to go through the reasons you stated. In our ongoing conversations since January, I have grown more and more concerned about your welfare and ability to maintain reasonable attendance in your role as a leader in Apple. I have personally seen the impact on your health and attendance when we engage in any discussions about Apple or when your attempt to return to work. I am also mindful of updates you have provided Steve and myself recently where you have informed us that your medical professionals themselves have questioned your ability to return to [sic] given you feel Apple is main reason for your continued absence. In addition, I am now under the impression your absence will continue following your update this week in that that you will be providing a further medical note extending your absence. Therefore, I am surprised to see you mention you are in a position where you can work for Apple as this does not coincide with what you have regularly said before. I feel we need to review this conﬂicting information further.

[120]In the same email he explained that he would shortly invite the claimant to an incapacity meeting in accordance with the respondent’s Absence and Attendance policy. He noted that her dismissal was a “possible outcome” of an incapacity meeting.

[121]The email of 29 July 2022 from Mr Dinnage was his substantive response to her email of 21 July 2022 (page 973) in which she explained her disagreement with certain statements contained in the referral. In particular she said with statements to the effect that: Page 29 of 60 - I am not happy due to stress in my work. - I have had unsustainable absences from work for the past five years. - I have exceeded the absence quota for Apple.

[122]She then went on to state: I desperately want to come back to work as I love my job and I love working for Apple and love what Apple stands for. I have repeatedly told everyone he knows me this, but at the moment I feel extremely unsupported, misunderstood, misinterpreted and misled by Apple, this saddens me further.

[123]On 11 August 2022, Mr Dinnage confirmed that he would delay the incapability meeting until the outcome of the occupational health referral (page 971).

[124]There was further correspondence in relation to what the occupational health referral should contain. The claimant’s position was set out in her email of 2 August 2022 (page 971). She said that she had: … Never stated a problem with Apple or insinuated that Apple was the trigger for my mental health. Additionally, I can confirm that I have never informed yourself or Steve that my medical professionals have themselves questioned my ability to return to Apple. To ensure total transparency and in order to avoid any further confusion going forward – My issue is not with Apple, myself and the medical professional supporting me have never stated this.

[125]Mr Dinnage replied in an email on 11 August 2022 (page 971). He did not accept what the claimant had said: You will note within the OH referral document I do reference that you have previously informed us working for Apple has impacted your mental health in conversations with Steve and myself this year. I appreciate you dispute [sic], however I still consider this a key point to raise to the medical ofﬁcer so I would like this addressed in the referral. In addition, I do feel it is imperative occupational health are aware of all aspects of your situation and this includes the fact that you have an ongoing employment tribunal claim. I have added this in purely for reference for their awareness, however, if my view and approach affect your consent please let me know.

[126]The claimant explained further why she did not agree with the content of the occupational health referral by her email of 16 August 2022 (page 986). She requested that what she termed as “the inaccuracies” be removed. Mr Dinnage replied on 19 August 2022 (page 983). He agreed to provide a copy of the claimant’s sickness record with the referral but indicated that he would not remove the other points which were in dispute. He noted in particular that Mr Coombs remembered the claimant telling him on 2 May 2022 that her psychiatrist had advised her to leave Apple. Further, he said that he himself remembered her telling him on 27 April that “the thought of coming back to work had filled [her] with significant anxiety”. He defended the reference to a legal claim against Apple in the Page 30 of 60 referral on the basis that it was potentially relevant “to how you experience the situation at work and your sickness absence”. He stated (page 984): With this in mind please provide your consent to this by Tuesday, August 23 or let me know if you do not consent to going ahead with the referral on this basis, in which case we will have to continue without an OH report.

[127]On or around 3 August 2022, the claimant approved the submission of the occupational health referral (page 983).

[128]We make the following findings in relation to the referral process that we have just described. First, whilst the claimant agreed to the referral, she did not on any realistic reading of the correspondence agree that the contents of it were accurate and Mr Dinnage knew this. Secondly, we find that Mr Dinnage believed the contents were accurate in light of his recollection of the conversations he had had with the claimant, particularly on 27 April 2022, and of what Mr Coombs had told him about conversations he had had with the claimant.

[129]An occupational health appointment was arranged for 1 September 2022 but postponed to 5 September 2022 because the claimant had another medical appointment on 1 September. The email with details of her new appointment sent on 2 September 2022 (page 1606) stated: Please see AMENDED TIME of your assessment. The clinician has also changed as per the request of Apple

[130]We find that Mr Dinnage knew that the occupational health physician would be changed by no later than 26 August 2022 because of the emails he exchanged with Ciaran Baker, the Accommodations Business Partner (page 996).

[131]The email named Dr Alasdair Emslie as the new clinician. The claimant was alarmed by what she regarded as the respondent’s intervention in the choice of clinician which had resulted in the Chief Medical Officer of the occupational health company, Health Partners, becoming involved. She sought clarification from Ms Stables, who worked for Health Partners. Ms Stables emailed the claimant on 7 September 2022 (page 1009) and seemingly contradicted what the email of 2 September 2022 had stated by saying: Due to the details provided in the referral form, your case would be assigned to an senior occupational health physician therefore on my instruction you [sic] case was allocated to Dr M’s Lee.

[132]We find this email seemingly contradicted that of 2 September because it at the very least implies that the change of physician was the decision of Health Partners and not of the respondent.

[133]The claimant sought further clarification by a phone call with Ms stables on 7 September 2022. However, Ms Stables was running late and the conversation was short. The claimant found that her concerns had not been satisfactorily answered. Ms Stables had, we found, referred rather vaguely during their brief conversation Page 31 of 60 to “judicial guidance” being the reason for the change of occupational health physician but had not explained what she meant by this.

[134]The claimant set out her concerns in an email to Mr Dinnage of 11 September 2022 (page 1013) in which she said she was cancelling her occupational health appointment. Her email concluded as follows: As my concerns and queries have not yet been addressed, I’m going to cancel Tuesday’s OHS meeting with Dr Alistair Emslie (Chief Medical Offices of Health Partners Ltd and Duradiamond Healthcare). Going forward I would like to understand what alternative options are open to me as I do not agree with some of the areas made in the referral report and also have concerns and queries relating to the conflicting information with the OHS referral. Please understand that I’m not being obstructive in this matter, my sole aim remains to return to work.

[135]We find that it is unsurprising that the claimant had such concerns. We also find that they were reasonable in light of the following facts: the commencement of the incapability procedure; the reasons for the 21 July 2022 occupational health appointment not going ahead and the criticisms that physician had made in writing about the way the respondent had handled that appointment; the disagreement about the contents of the occupational health referral; and the contradictory explanation she had received for the change of clinician. The claimant did not as such act unreasonably when cancelling the September appointment.

[136]Mr Dinnage replied to the claimant on 13 September 2022 (page 1013). He did not engage with the substance of her email but rather stated as follows: Hi Sherelle, Thanks for your response. I appreciate you sharing the timeline and your experience with Occupational Health to date; in light of this I will pause the referral process and move forward with the incapacity meeting in which we will discuss the purpose and process of the referral as well as your health and wellbeing holistically with the information we have available to us. You will receive an invite shortly. Kind Regards Christian

[137]We find that by this point Mr Dinnage had become frustrated by the occupational health process in light of the cancellation of the July and September appointments. We find that he believed that the claimant was being deliberately uncooperative and that her concerns about the process were unwarranted. We find Page 32 of 60 that this was because he did not think carefully about her concerns but rather saw them as simply being obstacles to the process he was attempting to follow. The incapacity process and dismissal

[138]The claimant was invited to an incapacity meeting by letter dated 15 September 2022 (page 1029). The meeting was initially due to take place on 21 September 2022. The claimant did not receive the invitation and the meeting ultimately took place on 4 October 2022. By the time of the meeting, the claimant’s last fit note had expired. Indeed, Mr Dinnage speaks to her during the incapacity meeting as though the absence period has now ended (for example, see page 1056).

[139]The notes of the 4 October meeting begin at page 1041. The claimant’s union representative, Mr Simpkin, attended. During the course of the meeting the claimant said that, so far as the fibroids were concerned, she was “fully healed and discharged” (page 1042). At page 1043 she notes that she is in “a much better mental and emotional place”. When asked what her thoughts were about returning to Apple and the role of a manager, she stated (page 1045): Really excited – Apple is my life. It’s the best job I’ve had – I believe in what it stands for, I’m excited to work alongside the leadership, the team and customers and having normality and in comparison, to where I was I’m doing much better. I love Apple and I’m really excited to come back.

[140]Mr Dinnage then asks (page 1046): And in terms of coming back which looks like early December post annual leave? What’s the medical advice on how it should look given your time away

[141]The claimant replies that “a phased return to work will be helpful”. She also says (page 1046) that she would like to talk about relocating. She expresses confidence in being able to maintain her role and notes that after the events of 2019 she had “come back to work and have been performing as expected in my role”.

[142]There is some discussion of the occupational health report of 10 May and their concern that she would not make a full recovery until her work-related concerns had been addressed. The claimant comments: That is of the option [sic] of the doctor I have spoken to. I don’t know what to say – as far as I’m concerned, I am ready to come back to work and to hold and carry out my full duties.

[143]The claimant then goes on to discuss at some length that her medical professional had suggested a change of location so that she would have no “connection within a work-related way” to Mr Kistner. She commented that any contact with him was a trigger. She agreed that returning to Bromley with “potential connections” with Mr Kistner would make her recovery “more challenging” (page 1049) and suggests a possible move to Covent Garden. Alternatively, she refers to an interest to working “in corporate” and refers to her CIPD accreditation. Page 33 of 60

[144]The claimant, whilst referring to the possibility of contact with Mr Kistner, also states: I will have some sort of interaction with that individual have [sic] to see him and work with him if I want to progress. I’m scared and worried for my mental health and physical safety.

[145]Mr Dinnage pointed out to the claimant (top page 1056) that from when she moved to Bromley until early 2022 her absences from mental health conditions were minimal and suggested that the move to Bromley was “broadly beneficial”. The claimant declined to address this question head-on and suggested that “ongoing triggers I was experiencing within working at Bromley” had played into her absence between January and 30 September 2022. She goes on to say, in effect, that remaining at Bromley and so risking exposure to Kistner affects her as follows (top page 1057): Coming and working in Bromley the amount of triggers I experienced and having to deal with those triggers was impacting me daily when I came home feeling physically sick, shaking, feeling anxious and nervous.

[146]In further discussions, the claimant is critical of how the occupational health process has been handled (page 1059) and critical of how the question of her annual leave has been handled (page 1062). She does however end the meeting by referring to her desire to return to work.

[147]It would be reasonable to summarise the claimant’s position in the meeting as follows. She is ready to return to work and does not say that she will not return, or will be unable to return, to the Bromley store. However, she suggests that her regular attendance would be assisted by her being moved to a job outside the South-East Market, because this would remove the possibility of her being “triggered” by contact with Mr Kistner. The dismissal and appeal

[148]Mr Dinnage met with the claimant on 23 November 2022 (page 1099). He communicated his decision to dismiss her. The dismissal letter of the same date was at page 1093.

[149]The letter considers: her condition and prognosis including that “you state that you are now fit to return to work”; the occupational health report; her rate of absence in the period 2019 to 2022; the impact of her absences on the respondent; existing and recommended adjustments; and alternative roles. The findings begin at page 1095. They include at page 1096: That the behaviours you displayed within your absence, including your inconsistency in how you feel about Apple whereby you cite a strong admiration for the business yet continue to share there are serious unresolved issues that impact your attendance, which leads me to conclude that you will not be able to sustain a return as a manager in Bromley or any other Apple Store. Page 34 of 60

[150]They also deal with matters including the impact of her absence on the Bromley store including on the management team and her direct reports; the level of her absence despite having been relocated to Bromley; the fact that despite the grievance and appeal process the claimant continued to request that she had no contact with Mr Kistner but, given the respondent’s managers are required to work with one another in different locations, this did not give Mr Dinnage confidence that she could put her differences aside and maintain reasonable attendance; that there was no evidence from a medical professional that a move to a London flagship store or the people team would support her in returning to work.

[151]Mr Dinnage’s conclusion was as follows (page 1096): I feel that all reasonable steps have now been taken to support you yet I am unable to gain confidence you will sustain a return to work. As a result of this, my decision is to terminate your employment based on your unacceptable levels of absence and the likelihood that your absences will continue at an unacceptable level.

[152]In light of the claimant’s sickness absence record, the failed attempts to obtain a further occupational health report after the one which had been produced in May, and all that the claimant had said at the meeting on 4 October 2022 about difficulties she anticipated if she returned to work in the Bromley store, we find that Mr Dinnage did believe that the claimant’s level of absence was unacceptable and that it was likely her absences would continue at an unacceptable level. We find that Ms Parsons also had this belief following the appeal. The appeal against dismissal

[153]The claimant appealed Mr Dinnage’s decision (page 1110). She emailed her appeal to the respondent on 28 November 2022 and attached a letter from a consultant psychiatrist, Dr Paul McLaren (page 1109). The letter was dated 25 November 2022 and stated as follows: I am writing to confirm that Mrs Yusuf has been fit to return to work and sustain their attendance since the Summer of 2022, and is currently fit to return to work at time of this letter.

[154]The claimant’s appeal against dismissal was heard by Ms Parsons on 9 and 21 February 2023 (page 1169). The appeal outcome was sent to the claimant on 11 May 2023 (page 1216), although the Appeal Outcome Report (page 1217) is dated 19 April 2023. The appeal was unsuccessful. The termination of the claimant’s medical insurance

[155]The claimant was dismissed without notice but with a payment in lieu of notice and, on dismissing her, Mr Dinnage explained on 23 November 2022 (page 1105) that her BUPA cover would expire at the end of November, but that EAP could extend coverage for 60 days after termination. We find that this reflected the respondent’s normal procedures. Page 35 of 60

[156]The claimant was in fact keen to continue her medical insurance because she had received a further recent diagnosis of cancer. She contacted Mr Dinnage and, as she accepted in cross examination, he took steps which resulted in her medical insurance being reinstated for what would have been her notice period if she had not been dismissed by a payment in lieu of notice being made. We find that, at the date of the decision to dismiss being communicated to the claimant, Mr Dinnage was unaware of the most recent cancer diagnosis. Submissions

[157]The parties both provided written submissions for which we are grateful and which they supplemented by brief oral submissions. Conclusions Direct Sex Discrimination (s.13 Equality Act 2010) 1) The Claimant has made the following allegations of less favourable treatment:(a) On 11 June 2019, Mr Kistner shouting at the Claimant, being aggressive towards her, shaking his finger in her face, putting his fingers to his lips and telling her to “shhh” a number of times.

(b) On 12 June 2019, Mr Kistner intimidating the Claimant with his behaviour where he shouted at her, aggressively waved his hands and refused to let her leave the room; For allegations (a) and (b), did this take place as the Claimant alleges?

Conclusions

[158]In light of our findings of fact, allegation 1)(a) is partially made out in that we have found that Mr Kistner put his finger to his lips and shushed the claimant several times.

[159]In light of our findings of fact, allegation 1)(b) is not made out and we do not therefore consider it further. 2) Was the Claimant treated less favourably than a hypothetical male comparator in relation to the allegations at paragraphs 1 (a) to (b)? 3) If so, was this because of the Claimant’s sex?

[160]The claimant contended that there were various matters which were sufficient to shift the burden of proof. These were noted at [85] of Mr Tomison’s skeleton argument and [17] of his closing submissions. 160.1. Mr Kistner has professed an inaccurate and untruthful account of the conversations: in light of our findings of fact above, we do not accept that this is the case. His account was partially inaccurate, and that is reflected in our findings in relation to allegation 1) (a). However, the reality of such events is that it is Page 36 of 60 normal that participants do not have a wholly accurate recollection of how they behaved and tend to recast events in their memories to reflect how they believe they would have behaved. Just as we have found above that the claimant was not dishonest in her recollections, we do not believe that the fact that Mr Kistner’s account was not wholly accurate is evidence of deliberate untruthfulness. 160.2. Evidence of the claimant that Mr Kistner exhibited these types of behaviours particularly towards women: we conclude that the claimant’s evidence in this respect was not accurate. For example, there are many and obvious differences between the conduct she ascribes to Mr Kistner in her further particulars at page 33 and the information provided by the women listed there either in their interviews with Mr Bever or, in the case of Ms Robinson, in her witness statement prepared for these proceedings. 160.3. The nature of the behaviour exhibited by Mr Kistner is wholly unacceptable in a workplace: in light of our findings of fact above, whilst we find that it is inappropriate for a manager to shush an employee whilst putting his finger to his lips, such behaviour cannot reasonably be classified as “wholly unacceptable”. 160.4. The action of “shhhing” a female member of staff indicates a demeaning attitude towards women: we conclude that shushing a female employee does not indicate a demeaning attitude towards women. There is nothing sex-specific about shushing somebody. 160.5. Mr Kistner has not exhibited these types of behaviour towards men: neither party has called any evidence of significance in relation to this issue. 160.6. The fact that his conduct breached the respondent’s Business Conduct Policy and Feedback Policy: we find that shushing an employee and putting one’s fingers to one’s lips would amount to a breach of these policies but not a particularly significant one.

[161]Taking these matters together, we conclude that they do not amount to evidence from which we could conclude, in the absence of any other explanation, that the claimant was treated less favourably because of sex. There is simply nothing of significance that points in that direction.

[162]Further, if we had concluded that the burden of proof had shifted, we would have concluded that the conduct was not in any way because of sex and that Mr Kistner had simply reacted in an inappropriate manner to the claimant’s response to his feedback. We would have found that the way in which he reacted reflected above all his experience over time of the difficulty inherent in giving the claimant feedback (a difficulty experienced by other managers).

[163]The claimant’s claim of direct sex discrimination therefore fails and is dismissed. Harassment (s.26 Equality Act 2010) Page 37 of 60 4) Did Mr Kistner’s treatment of the Claimant on 11 and 12 June 2019 amount to unwanted conduct which had the purpose or effect of violating the Claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her related to sex?

[164]in light of our findings of fact above, the first question for us is whether Mr Kistner shushing the claimant and putting his finger to his lips was unwanted conduct. We find that it was.

[165]The next question is whether such unwanted conduct had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Having regard to what is said in Dhaliwal and Hughes and others (see [23] and [24] above), we conclude that the conduct was not sufficiently serious to have “violated” the claimant’s dignity and that it did not have that purpose or effect. Further, we conclude that it did not have the purpose or effect of creating an intimidating, hostile degrading, humiliating or offensive environment. It was a one-off incident and insufficiently serious when seen in context to create such an environment. The claimant’s claim of harassment therefore fails and is dismissed.

[166]However, in case we are wrong about that, the next question is whether such conduct related to sex. Mr Tomison puts the claimant’s argument in this respect on the basis that the conduct of Mr Kistner was “motivated by” sex ([88] of the claimant’s skeleton argument). We have already concluded that the conduct proved was not “because of” sex and we further conclude that it was not in any way “motivated by” sex. There is no evidence of significance that Mr Kistner would not have reacted similarly to a man in the same or broadly similar circumstances. Further and separately, casting the net wider, there is nothing of significance which would enable us to find properly that the conduct relates to sex. The claimant has not shifted the burden of proof to the respondent but, if she had, in light of these matters we would have concluded that the unwanted conduct that we have found was unrelated to sex. Victimisation (s.27 Equality Act 2010) 5) The Claimant relies on the following allegations as protected acts:(a) The Claimant’s two grievances against Mr Kistner dated 22 July 2019;

(b) The Claimant’s concerns regarding alleged discrimination and harassment based on race and sex which were raised by the Claimant at the grievance hearing of 7 August 2019 and in the documentation, which she subsequently sent Ms Boyd on 8 August 2018.

(c) The Claimant’s appeal dated 29 October 2019, and the further details provided by the Claimant on 6 November 2019 where she raised concerns about her alleged discriminatory experience based on her race and sex; Page 38 of 60

(d) The Claimant’s Tribunal Claim submitted on 9 February 2020 where she raised concerns about her alleged discriminatory experience based on her race and sex;

(e) The Claimant’s concerns regarding alleged discrimination and harassment based on her race and sex which were raised by the Claimant at the appeal hearing of 6 and 10 February 2020. In relation to the allegations at paragraph (a) above, do these amount to protected acts within the meaning of section 27(2) of the Equality Act 2010? The Respondent admits that the acts at paragraphs (b) to (e) above amount to protected acts. The Respondent also admitted on the first day of the hearing that the claimant’s grievance of 22 July 2019 at page 363 was also a protected act – that is to say one of the two grievances referred to at (a) above. In his closing submissions, Mr Tomison indicated that the claimant did not rely on the grievance relating to the incidents on 11 and 12 June as a protected act. There is therefore no issue for the Tribunal to decide in respect of whether particular matters amounted to protected acts. 6) Was the Claimant subjected to detrimental treatment because of the above protected acts with respect to the following: (a) The alleged failure to adequately investigate her two grievances of 22 July 2019 relating to Mr Kistner;

[167]We turn first to the question of knowledge: Mr Kistner cannot have victimised the claimant as alleged if he was unaware of the protected acts. In light of our findings of fact at [103] and [104] above, we find that Mr Dinnage knew that the claimant had brought a discrimination claim under the Equality Act against the respondent from around October 2020. He therefore had the necessary knowledge, given that the claimant’s case as set out at the hearing was very much that it was knowledge of the discrimination claim that was the reason for the alleged detriments.

[168]Turning to the first claimed act of victimisation, in light of our findings of fact above to the effect that there was no such failure there was no such detrimental treatment. (b) The Respondent’s decision of 23 October 2019 not to uphold her two grievances relating to Mr Kistner; Page 39 of 60

[169]At [96] of his skeleton argument Mr Tomison contends on behalf of the claimant that “In making her decision, Ms Boyd’s ignored the supporting evidence highlighted at §34 of the Claimant’s witness statement and Mr Kistner’s own admission that he had problems with composure. She turned a blind eye to that evidence, and she did that because she wanted to shut down the Claimant’s allegations of discrimination”.

[170]We have found at [85] above that the investigation by Ms Boyd of the grievances was significantly better than adequate. We conclude that she did not ignore the highlighted evidence or Mr Kistner’s own admission that he had problems with composure. We therefore conclude that the claimant has not proved facts from which we could in the absence of any other explanation conclude that not upholding the grievances was an act of victimisation.

[171]Further and separately, if the burden of proof had shifted, we would have concluded that the respondent had proved that the reason for the grievances being rejected was in no sense whatsoever the protected acts. We would have concluded that the reason for the grievances being rejected was that Ms Boyd, after a significantly better than adequate investigation, had concluded in good faith that that there was insufficient evidence for her to uphold any of them. We should add that there was no evidence of any significance before us which suggested that Ms Boyd would have been inclined to “shut down” allegations of discrimination. (c) The alleged failure to adequately investigate her appeal of 29 October 2019 against the grievance decisions relating to Mr Kistner; 172. in light of our findings of fact above to the effect that there was no such failure, the factual allegation fails – there was no such detrimental treatment. (d) The Respondent’s decision of 26 March 2020 not to uphold her appeal against the grievance decisions relating to Mr Kistner;

[173]At [101] of his skeleton argument Mr Tomison contends “In making his decision, Mr Bever ignored the evidence which supported the Claimant’s grievance, and he did that because he wanted to shut down the Claimant’s allegations of discrimination.”

[174]We have found above that Mr Bever’s investigation was significantly more than adequate. We conclude he did not ignore the evidence which supported the claimant’s grievance. This is of course reflected in the fact that he expressly reached a conclusion in relation to the shushing issue and, also, upheld a part of the grievance (see [101] above).

[175]We conclude that the claimant has not proved facts from which we could in the absence of any other explanation conclude that not upholding the greater part of the grievance appeals was an act of victimisation.

[176]Further and separately, if the burden of proof had shifted, we would have concluded that the respondent had proved that the reason for the grievance appeals being rejected (other than set out in [101] above) was in no sense whatsoever the protected acts. We would have concluded that the reason for the grievance appeals being rejected was that Mr Bever, after a more than adequate investigation, had concluded in good faith that that there was insufficient evidence for him to uphold any more of the appeal than he did. We should add that there was no evidence of any Page 40 of 60 significance before us which suggested that Mr Bever would have been inclined to “shut down” allegations of discrimination. (e) The OH process being sabotaged by the Respondent adding inaccurate details to the referral form, not updating the Claimant about changes and then suspending the OH process;

[177]We have set out our findings in relation to the OH process at [111] to [137] above. Turning to the specific points made by Mr Tomison in his skeleton argument (its [104]) we conclude: 177.1. Inaccuracies: in light of our factual conclusions above, we find that the referral was not materially inaccurate in relation to the level and reasons for her absences. We also find that although the claimant may not have stated that “Apple itself is a trigger for her mental health”, Mr Dinnage thought that that was what she believed. 177.2. Claimant not updated about the changes: in light of our findings of fact above, we conclude that Mr Dinnage did not update the claimant about the change to a different occupational health physician between 26 August 2022 and 2 September 2022 (when the claimant found out about it). 177.3. Suspending the occupational health process: in light of our findings of fact above, we conclude that Mr Dinnage did in effect suspend the occupational health process by his email of 13 September 2022 (see [136] above).

[178]The claimant contends that these three matters taken together amount to the respondent “sabotaging” the occupational health process. The Concise Oxford Dictionary defines sabotage as “deliberately destroy or obstruct, especially for political or military advantage”.

[179]In light of our findings of fact in relation to the three elements of the alleged “sabotage”, we conclude that Mr Dinnage did not “sabotage” the occupational health process: the “inaccuracies” were either not inaccuracies at all or reflected Mr Dinnage’s understanding of factual matters. So far as failing to update the claimant was concerned, we find that it simply did not occur to Mr Dinnage to do so. He was not responsible for sending the claimant details of her occupational health appointments. So far as suspending the occupational health process, we find that by mid-September Mr Dinnage took the view that it would not be possible to persuade the claimant to attend an occupational health referral in the near future and he believed that he should proceed with the incapability procedure which had been suspended in order for the claimant to attend a further occupational health appointment. We refer to our findings at [137] in this respect: he believed the claimant was being uncooperative and that her concerns were unfounded. He was irritated and frustrated by her.

[180]However, we should not place too much emphasis on the exact meaning of “sabotage” and therefore consider whether what we have concluded the respondent did in relation to the occupational health process amounted to an act of victimisation because we conclude that it did amount to detrimental treatment of the claimant.

[181]The claimant identifies the matters which are sufficient to shift the burden of proof at [53] of Mr Tomison’s closing submissions: Page 41 of 60 181.1. Breach of occupational health policy: because, it is alleged, Mr Dinnage did not “meet with you in advance to discuss the reason for the referral, along with the advice and guidance they’re seeking from Health Partners”. We conclude that Mr Dinnage did breach the policy in this way. He did not meet with the claimant and, prior to the July referral, he did not discuss the advice and guidance that he was seeking. Even after the July referral, whilst he identified the advice and guidance that he was seeking – by providing the draft referral to the claimant – he did not have a meeting to discuss it with her. 181.2. Providing reasons which did not align with the advice actual being sought: the claimant relies on the emails at pages 927 and 928 in this respect in which Mr Dinnage said on 7 April 2022 “we really want to understand any adjustments we might need to make to help you to return to work”. However, we conclude that following the failed July referral Mr Dinnage was clear that there was a possibility of dismissal when he explained to her that she would be invited to an incapacity meeting which could result in her dismissal (see [120] above). 181.3. Mr Dinnage being unreasonable in refusing to even acknowledge in the referral that the claimant disagree with the factual premise of some of the matters put (and “doubled down” when she raised the matter): the doubling down referred to is the adding in of “in part” in the sentence “Her current mental health issues are as a result of perceived stress caused by the job/employer” (see email at page 966). We accept the evidence given by Mr Dinnage in cross-examination in relation to this: he added in these words because it felt appropriate in light of her referencing other factors in his discussions with her. More generally, however, we find that it was unreasonable for Mr Dinnage to refuse to even acknowledge in the referral that the claimant disagreed with the factual premise of some of the matters included in it. There was no good reason for him to proceed in this fashion; indeed, there are obvious reasons why the occupational health physician might have found such information useful. We do not accept that this point is negated by the claimant having “agreed” to the referral in the terms it was made in light of our findings of fact at [128] above. 181.4. The later conduct relating to dismissal: we deal with the points raised in this respect below and have taken them into account in reaching our conclusions in [182] and [183] below.

[182]Overall, having carefully considered the matters specifically relied on by Mr Tomison, we conclude that the claimant has not proved facts from which we could in the absence of any other explanation conclude that the way Mr Dinnage dealt with the occupational health process was an act of victimisation. The conduct of Mr Dinnage was at times clumsy, unsympathetic and even unreasonable (the failure to acknowledge the claimant’s disagreement with the factual contents of the referral) but we conclude that there is not evidence from which we could infer a causal link between the treatment complained of and any of the protected acts.

[183]Further and separately, if the burden of proof had shifted, we would have concluded that the reason Mr Dinnage dealt with the occupational health process as he did was in no sense whatsoever the protected acts. We would have concluded that, although Mr Dinnage was aware of the Tribunal claim in the most general terms (see our findings at [103], [104] and [167] above), it was of little if any significance to him Page 42 of 60 other than being part of the factual matrix which explained the claimant’s ill-health. It related to events which had taken place at another store, of which he knew nothing, and which involved people with whom he did not work day-to-day. He had no personal interest in the Tribunal claim. Rather, we would have concluded that the shortcomings in the occupational health process reflected a less than sensitive approach by Mr Dinnage to the claimant’s absence and the fact that he was process driven. He did not believe at the time that he was in any way responsible for the derailing of either the July or the September occupational health referrals. (f) Her dismissal;

[184]At [113] of his skeleton argument Mr Tomison contended that there were matters from which we could draw inferences that the reason for dismissal was, at least to a more than trivial extent, the protected acts (primarily the employment tribunal claim): 184.1. The Respondent had sabotaged the OH process: we have concluded above that the respondent did not sabotage the OH process, although some criticisms may be made of it – see our conclusions at [179]. 184.2. It had no up to date OH report: it is correct that there was no up to date occupational health report and we refer to our findings at [136] and [137] as reflecting the “end point” in the occupational health process. 184.3. Mr Dinnage made no request for medical evidence from the Claimant’s treating clinicians: it is correct that Mr Dinnage made no such request. The relevant part of the respondent’s Absence and Attendance policy provides (page 1241): Your manager may complete an Understanding Medical Condition form and refer you to Appleʼs Occupational Health Services to obtain a medical report relating to your condition, or to seek permission to contact your GP. This gives your manager access to relevant medical advice about your return to work, which could include a phased return or other reasonable adjustments recommended by the OHS Advisor or your doctor 184.4. When Mr Dinnage was asked about this in cross-examination, he answered that he did not recall that part of the policy and that he had not used it before. We find that Mr Dinnage was unaware that the respondent’s policy raised the possibility of obtaining medical evidence from an employee’s treating clinician. 184.5. The Claimant was repeatedly saying that she was well and ready to return to work: we find that on a number of occasions the claimant indicated that she was well and ready to return to work. However, such comments must be seen in the context of her comments about the problems she foresaw if she returned to work at the Bromley Store because of what she said she regarded as the risk of some form of contact with/reminder of Mr Kistner. We refer in this respect to our findings between [138] and [147] above in relation to the hearing on 4 October 2022. 184.6. The OH report from May 2022 required a follow up report in 8 weeks’ time to allow for the Claimant to continue with her therapy at the time after Page 43 of 60 which, they were “hopeful” that she would be able to return (which further supports the Claimant’s own evidence that she was ready to return): read fairly as a whole, we conclude that the occupational health report from May 2022 does not suggest that the claimant would be able to return to work in 8 weeks’ time. The more realistic reading of the relevant section of the report set out at [111] above is that after 8 weeks the claimant might be able to re-engage with the employer about her difficulties at work, not return to work. It does not identify any likely date for a return to work. 184.7. There is no real evidence of any significant impact on the Bromley store caused by the Claimant’s absence: we conclude in light of Mr Dinnage’s evidence that there is no real evidence that the performance of the Bromley store had in objective output terms fallen or that customer service had been affected. However, Mr Dinnage explained clearly the effects of the claimant’s absence: the people she line-managed having to be re-allocated and her own non-management work having to be done by other managers at her level or a higher level. We conclude that there was some impact on the team who covered her work.

[185]Overall, having carefully considered the matters specifically referred to by Mr Tomison, we conclude that the claimant has not proved facts from which we could in the absence of any other explanation conclude that dismissing the claimant was an act of victimisation. Various criticisms fall to be made of the process leading to the claimant’s dismissal, but we conclude that there is no evidence from which we could infer a causal link between the treatment complained of and the protected acts.

[186]Further and separately, if the burden of proof had shifted, we would have concluded that the reason Mr Dinnage took the decision to dismiss the claimant was in no sense whatsoever the protected acts. We would have concluded that, although Mr Dinnage was aware of the Tribunal claim in the most general terms (see our findings and conclusions above), it was of little if any significance to him other than being part of the factual matrix which explained the claimant’s ill-health. It related to events which had taken place at another store, of which he knew nothing, and which involved people with whom he did not work day-to-day. He had no personal interest in the Tribunal claim. We find that the reason for Mr Dinnage dismissing the claimant was simply that set out at [152] and that, following the appeal, it remained the respondent’s reason for dismissing the claimant. (g) Her medical insurance being terminated (i.e. the decision to terminate her employment with immediate effect).

[187]We refer to our findings of fact at [155] to [156] above in this respect. We conclude that the reason the claimant’s employment was terminated with immediate effect and a payment in lieu of notice was simply that this reflected the respondent’s normal procedures. It was in no sense whatsoever because of the protected acts.

[188]The claimant’s victimisation claims therefore fails in its entirety and is dismissed. Failure to make reasonable adjustments (sections 20 and 21 Equality Act 2010) Page 44 of 60 7) From what date did the Respondent know or could it reasonably have been expected to know that the Claimant had anxiety and depression? In a discussion at the beginning of the second day of the hearing Ms Reindorf clarified that the Respondent accepted that it had actual knowledge from 18 October 2021 (in light of a document beginning at page 856).

[189]Given that the respondent accepts that it had actual knowledge from 18 October 2021, there is no issue to decide in this respect because the claimant contends that the respondent should have made reasonable adjustments from 4 October 2022 ([135] of the claimant’s skeleton argument), offering them either at the incapacity meeting on that date or at the outcome of the appeal. 8) Did the Respondent have the following provision, criterion or practices (“PCP”):(a) a requirement for employees to have returned to work or be certified fit to return to work, including not having any further absences?

(b) a requirement for the Claimant to maintain a certain level of attendance at work in order not to be subject to the risk of dismissal;

[190]The respondent accepted in Ms Reindorf’s closing submissions that it had such PCPs ([85] of the respondent’s closing submissions). 9) Did the PCP/s put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability? The Claimant relies upon the following substantial disadvantages: (a) Her disability increased the likelihood of sickness absence, and therefore the likelihood of: (1) not being able to return to work; (2) being dismissed and (3) her medical insurance being terminated. 10) Did the Respondent know, or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantages?

[191]The respondent accepted in Ms Reindorf’s closing submissions that the claimant was place at a disadvantage as she claimed and that the claimant knew of such disadvantage from 18 October 2021 ([86] and [87] of the respondent’s closing submissions). 11) Would the following adjustments have alleviated the alleged substantial disadvantage(s) for the Claimant caused by the alleged PCP: Page 45 of 60(a) Offering her a phased return to work;

(b) Redeployment to other roles and/or branches;

(d) Obtaining further advice from OH;

(e) Considering mediation between the various parties involved;

(f) Discounting any disability related absences from counting against the Claimant for the purposes of the capability process;

(g) Offering the Claimant an opportunity to improve and/or setting targets by which her absence levels were to be monitored.

[192]The claimant’s case is that “all of the adjustments would have alleviated the substantial disadvantage, because it [sic] would have helped to reduce the Claimant’s sickness absences, which would in turn have reduced the likelihood of her being dismissed because of sickness absence” ([141] of the claimant’s skeleton argument).

[193]The question for us, therefore, is whether any of the proposed adjustments would have alleviated the substantial disadvantage because they would have helped reduce her sickness absences and so the risk of dismissal. Turning to each of them individually: 193.1. Phased return to work: the claimant asked for a phased return to work at the meeting on 4 October 2022. A phased return had been used to get her successfully back to work in November 2021 ([11] to [12] of Mr Dinnage’s witness statement). We find that a phased return to work would have helped reduce her sickness absence going forward, and so the risk of dismissal, because it would have given the claimant the opportunity to adapt gradually to the inevitable pressures of returning to work after a lengthy absence. 193.2. Redeployment to other roles and/or branches: although it is clear from what the claimant said on 4 October 2022 that she wanted to move to another role or branch, we conclude that this would not have helped her reduce her level of sickness absence. This is because her rationale for wishing to move was the risk of some form of contact with, or reminder of, Mr Kistner if she returned to the Bromley Store. However, she had worked successfully there from the summer of 2020 to January 2022. There was very little risk of any contact whatsoever with him if she returned to work there. On any realistic assessment, it was not actual or possible contact with Mr Kistner that had prompted her absence from January 2022 and we refer to our findings at [105] to [106] above in this regard. This would not therefore have been a “reasonable adjustment”. 193.3. Moving Mr Kistner to another location so that there were no risks of them coming into contact with one another: we also conclude that this would not have helped her reduce her level of sickness absence. We repeat our reasoning in [193.2]. This would not therefore have been a “reasonable adjustment”. Page 46 of 60 193.4. Obtaining further advice from OH: the real thrust of the claimant’s argument in relation to occupational health advice is that the absence of up to date advice meant that the respondent believed that she was not well enough to return to work when in fact she was – see, for example, what she said in the meeting on 4 October 2022 as set out at [142] above. The obtaining of further occupational health advice would not, we find, in and of itself have helped to reduce the claimant’s level of sickness absence and would not, therefore, have been a “reasonable adjustment”. 193.5. Considering mediation between the various parties involved: the question of mediation had been raised by Ms Boyd in October 2019 (page 631) but never pursued when the claimant was still at the Bluewater store. We conclude that arranging a mediation between the claimant and the Leadership team at the Bluewater store in October 2022, some three years later, would not have helped to reduce the claimant’s level of sickness absence at the Bromley store. We further find, in light of the uncompromising attitude of the claimant during the meeting on 4 October 2022, that mediation between the claimant and any of her then current managers would have been unlikely to reduce her level of sickness absence. To consider or arrange mediation would not, therefore, have been a “reasonable adjustment”. 193.6. Discounting any disability related absences from counting against the Claimant for the purposes of the capability process: if all of the claimant’s disability related absence had been discounted this would have reduced the claimant’s sickness absences for 2022 to more or less zero and so would have indeed reduced the likelihood of the claimant being dismissed. 193.7. Offering the Claimant an opportunity to improve and/or setting targets by which her absence levels were to be monitored: as will be clear from our conclusions in relation to the complaint of unfair dismissal, we conclude that these are things that should indeed have been done. However, Mr Tomison put his case on the basis that this would have “helped to reduce the Claimant’s sickness absence” and, we conclude, in and of itself it would not have done. This would not, therefore, have been a reasonable adjustment. 12) Was it reasonable for the Respondent to have to take these steps and if so when?

[194]In light of our conclusions above, this issue only arises in relation to two issues: 194.1. The phased return: we conclude that it would have been reasonable for the respondent to have taken such a step in October 2022. In reaching this conclusion we have in particular taken into account that allowing the claimant a phased return would not have required the respondent to ignore its obvious and reasonable concerns about her attendance record in 2022 and before. If, after a phased return, the claimant had failed to sustain her attendance, the respondent would have been able to resume the incapability procedure. 194.2. Discounting any disability related absences: it would not have been reasonable for the respondent to have taken this step. It would have had the effect of requiring it to ignore the whole of the claimant’s near 9-month absence in 2022. Page 47 of 60 An employer cannot reasonably be expected to ignore an absence of this length in circumstances such as those prevailing in this case. 13) Did the Respondent fail to take these steps?

[195]The respondent failed to take the step of offering a phased return and so, in this respect only, breached its obligation to make “reasonable adjustments”. Discrimination arising from disability (s. 15 Equality Act 2010) 14) Did the Respondent know or could it reasonably have been expected to know that the Claimant had a disability? From what date? In light of the respondent’s admissions in relation to knowledge, there is nothing for us to decide in relation to this issue. 15) Did the following amount to unfavourable treatment by the Respondent:(a) failing to consider all alternatives to dismissal, in particular a move to the flagship store in view of the Claimant’s disabilities;

(b) dismissing the Claimant.

[196]At [121] of his skeleton argument, Mr Tomison states “Although there are two instances of unfavourable treatment in the List of Issues, they are essentially the same: that the Claimant was dismissed”. We therefore approach our conclusions on this basis.

[197]The respondent accepts that the claimant’s dismissal was unfavourable treatment ([99] of its closing submissions). It also states that “the reason for it was the lack of any prospective sustained end to her sickness absence”. 16) Did the following things arise in consequence of the Claimant’s disability: (a) Sickness absence

[198]The respondent accepts that the claimant’s sickness absence was ““something arising” in connection with her disability”. It does not appear that the respondent was seeking to make any distinction between “in connection with” and “in consequence of” but, for the avoidance of any doubt, we find that the claimant’s sickness absence was indeed something arising in consequence of her disability.

[199]We note that the list of issues has omitted the “because of” question. We conclude that the unfavourable treatment (i.e. the dismissal) was because of the claimant’s sickness absence. The claimant’s sickness absence was substantially more than a trivial part of the reason for the dismissal. 17) Was the treatment of the Claimant a proportionate means of achieving a legitimate aim? The Respondent states that its legitimate aims were: (a) Not having an employee as part of its headcount indefinitely when there was no reasonable prospect of the employee returning to work to perform Page 48 of 60 the full role of manager and sustaining an acceptable level of absence, given the impact of this on customer service and the rest of the team who covered her work.

[200]We conclude that not employing someone indefinitely when there is no reasonable prospect of them returning to work to perform the full role of manager and sustaining an acceptable level of absence given the impact on customer service and the rest of the team covering their work is a legitimate aim. To conclude otherwise would be to find that an employer must accept the indefinite absence of a manager who is off work sick with no reasonable prospect of them returning.

[201]Turning to the question of justification, we are required to carry out a critical evaluation of the proportionality defence and in doing so should weigh the needs of the employer against the discriminatory impact on the employee.

[202]We conclude that carrying out such an exercise results in the conclusion that the dismissal of the claimant was not a proportionate means of achieving the legitimate aim in question for the following reasons: 202.1. Although we have concluded at [184.7] above that there was some impact on the team who covered her work, we have also concluded that there was no real evidence that “customer service” had been affected. The respondent had initially recruited the claimant as an “over hire” (i.e. a manager who appointment was strictly speaking unnecessary in terms of the metrics it used) and, even if she was no longer in effect an “over hire” when she was dismissed, we conclude that the overall effect of her absence on the respondent’s business at the Bromley store was very limited. 202.2. By contrast, the effect of the claimant’s dismissal on the claimant was very significant indeed for her, given in particular her lengthy employment, and the fact that seeking alternative employment would inevitably be particularly challenging for her given that at the point of dismissal she was about to return to work from a lengthy period of absence. 202.3. Further, this was not a case where there was any up-to-date medical evidence to the effect that the claimant’s absence would continue. Rather it was a case where the claimant herself was saying that she was fit to return to work and such up-to-date medical evidence as there was said, by the time of the appeal, that she was fit to return to work (see our findings at [153] above). 202.4. There were various less severe means of achieving the legitimate aim relied on by the respondent: 202.4.1. Allowing the claimant to attempt a return to work, as she said she was able to, setting attendance targets, and then adopting a “wait and see” approach for a limited period of time before, if necessary, again following the capability procedure and dismissing her. 202.4.2. Further and separately, allowing a phased return to work (which we have found above would have been a reasonable adjustment). Clearly, if in fact the claimant had not sustained an acceptable level of absence, the Page 49 of 60 respondent could at that point have achieved the legitimate aim in question by again following the capability procedure and dismissing her. 202.4.3. Further and separately, making further attempts to obtain a further occupational health report before reaching a final conclusion, rather than relying on one which was by the time of the dismissal nearly five months old. We find that the respondent should have done this in light of our findings of fact at [135] above about the reasons for the claimant cancelling the final occupational health appointment and at [137] about Mr Dinnage’s failure to think carefully about the concerns of the claimant which had led her to cancel the appointment in September. We find that, if the respondent had made a serious attempt to address her concerns, then the claimant would have attended a further occupational health appointment. If the claimant had refused to co-operate, or the further occupational health advice had not confirmed that the claimant was well enough to return to work, the respondent could at that point have achieved the legitimate aim in question by again following the capability procedure and dismissing her; 202.4.4. Further and separately, asking the claimant for permission to contact her treating physician as permitted by the respondent’s own policy. We made findings in relation to this at [184.3] and [184.4] above. Mr Dinnage was unable to provide any explanation for why he had not done this other than that he was unaware that the policy permitted him to do so. If the claimant had refused to co-operate, or any further medical advice had not confirmed that the claimant was well enough to return to work, the respondent could at that point have achieved the legitimate aim in question by again following the capability procedure and dismissing her; 202.4.5. Each of these alternatives to making a decision to dismiss following the meeting on 4 October 2022 without seeking further evidence or permitting the claimant to attempt a return to work (whether phased or not) would have been a less severe means of achieving the legitimate aim: none of them would have prevented the respondent from dismissing the claimant within a reasonable period of time if she was indeed unable to achieve a satisfactory level of attendance but each would have given her an opportunity to demonstrate that she could achieve the necessary level. 202.5. In light of these conclusions the claimant’s complaint that her dismissal was an unjustified act of discrimination arising from disability succeeds. Unfair dismissal (s. 98 Employment Rights Act 1996) 18) Was the Claimant dismissed for a fair reason? The Respondent will say the Claimant was dismissed fairly by reason of capability. (a) Did the Respondent genuinely believe that the Claimant was no longer capable of performing her duties?

[203]We conclude that the respondent did have such a belief in light of our findings of fact at [152]. Page 50 of 60 19) Did the Respondent act reasonably, in all the circumstances, in treating this reason as sufficient to dismiss the Claimant? In particular:(a) Did the respondent adequately consult the Claimant on all matters relating to the capability process?

(b) Did the respondent carry out a reasonable investigation, including finding out about the up-to-date medical position (including at the appeal stage);

(d) Did the Respondent consider all alternatives to dismissal?

[204]Turning to the question of consultation, an employer should “consult the employee and take his views into account” (BS v Dundee City Council). We conclude that the respondent did consult the claimant, in particular during the meeting on 4 October 2022. We further find in light of the drafting of the dismissal letter that they were “taken into account”, in the sense that Mr Dinnage registered the points she had made.

[205]However, we conclude that the respondent did not carry out a reasonable investigation, including finding out about the up-to-date medical position (including at the appeal stage). We so conclude essentially for the same factual reasons we have concluded at [202.4.3] and [202.4.4] that there were less severe means of achieving the legitimate aim relied on. We have therefore concluded that any reasonable employer would, in the circumstances of this case, have sought further medical information before reaching a decision to dismiss the employee. We should emphasize that we would not have reached this conclusion if we had found that the claimant had unreasonably failed to cooperate with the respondent’s occupational health process or had refused to permit the respondent to contact her GP or treating consultant having been asked to agree to this. In those circumstances we would have concluded that the respondent had carried out a reasonable investigation.

[206]Our conclusion in this respect is strengthened by – but not dependent on – our conclusions in relation to the procedural failures we have identified in the occupational health process at [181.1] above, the way in which Mr Dinnage was process driven as we have found at [183] above and did not, we conclude, think carefully about the substantive rather than procedural aspects of the process, his lack of knowledge of the relevant policy as we have found at [184.4] above and our findings that he was clumsy, unsympathetic and unreasonable in how he followed the occupational health policy as found at [182] above.

[207]Further and separately, we conclude that the respondent could reasonably have been expected to wait longer before dismissing the claimant. We so conclude: 207.1. Because any reasonable employer would have waited long enough to enable it to carry out a reasonable investigation. In particular, by the date of the appeal hearing there was medical evidence that she was well enough to Page 51 of 60 return to work. In her oral evidence Ms Parsons said that the letter from the claimant’s consultant of 25 November 2022 (page 1109) “lacked some content” as an explanation for not dealing with it in her appeal outcome letter – before going on to say that she should have asked for more medical evidence. Given the lack of any other up-to-date medical evidence, any reasonable employer would have waited long enough at least to permit an attempt to obtain further medical evidence if they thought such further medical evidence were necessary, and they were not prepared to accept the consultant’s letter as adequate evidence of an ability to return to work; 207.2. Further and separately, because we have found that permitting a phased return to work would have been a reasonable adjustment; 207.3. Because the claimant had long service; 207.4. Because the impact on the respondent’s business was, as we have found at [202.1] above, very limited.

[208]In light of what the claimant said about problems she foresaw on returning to the Bromley store at the meeting on 4 October 2022, we would not have reached the conclusion that any reasonable employer would have waited longer but for: 208.1. Our conclusion in [207.1] above. 208.2. Further and separately, our conclusion in [207.2.] above, 208.3. The other factors we have identified in [207] simply add weight to the matters considered in [207.1] and [207.2.].

[209]The claimant has not put forward in their skeleton argument or closing submissions any argument that the dismissal was unfair because of a failure to consider alternatives to dismissal, but realistically this issue is subsumed into those already considered.

[210]The claimant does however put forward as a specific factor that “the Respondent had caused the latest period of sickness absence through its unreasonable conduct in seeking a postponement of the final hearing in January 2022”. However, although we have found at [106] above that the postponement of the hearing in January 2022 and the upset it caused the claimant was a factor in the long period of sick leave that then followed, we have not found either that the respondent’s conduct in seeking a postponement was unreasonable or that its conduct caused or exacerbated the claimant’s ill-health. As to the former point, a review of the costs bundle suggests that the respondent had a good reason for not informing Mr Kistner of the final hearing dates and generally keeping him abreast of developments in the litigation in the normal way. As to the latter point, we simply do not have sufficient medical evidence. We have therefore concluded that this is not a case to which the principles set out in McAdie or L v M apply.

[211]Overall, however, we conclude that the claimant’s dismissal was unfair because: Page 52 of 60 211.1. The respondent did not carry out a reasonable investigation as set out at [205] above; and 211.2. Further and separately, the respondent could reasonably have been expected to have waited longer before deciding to dismiss her as set out at [207] above. In relation to this point, we should note that although the issue was expressed as “Could the Respondent reasonably have been expected to wait longer before dismissing the Claimant” we have approached it on the basis that the question for us to consider is would any reasonable employer have waited longer – in other words was the respondent’s failure to wait longer outside the band of reasonable responses. Page 53 of 60 Appendix one – the agreed issues CLAIMS Direct Sex Discrimination (s.13 Equality Act 2010)

CLAIMS

[1]The Claimant has made the following allegations of less favourable treatment:(a) On 11 June 2019, Mr Kistner shouting at the Claimant, being aggressive towards her, shaking his finger in her face, putting his fingers to his lips and telling her to “shhh” a number of times.

[2]Was the Claimant treated less favourably than a hypothetical male comparator in relation to the allegations at paragraphs 1 (a) to (b)?

[3]If so, was this because of the Claimant’s sex? Harassment (s.26 Equality Act 2010)

[4]Did Mr Kistner’s treatment of the Claimant on 11 and 12 June 2019 amount to unwanted conduct which had the purpose or effect of violating the Claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her related to sex? Victimisation (s.27 Equality Act 2010)

[5]The Claimant relies on the following allegations as protected acts:(a) The Claimant’s two grievances against Mr Kistner dated 22 July 2019;

(d) The Claimant’s Tribunal Claim submitted on 9 February 2020 where she raised concerns about her alleged discriminatory experience based on her race and sex;

[6]Was the Claimant subjected to detrimental treatment because of the above protected acts with respect to the following:(a) The alleged failure to adequately investigate her two grievances of 22 July 2019 relating to Mr Kistner;

(b) The Respondent’s decision of 23 October 2019 not to uphold her two grievances relating to Mr Kistner;

(c) The alleged failure to adequately investigate her appeal of 29 October 2019 against the grievance decisions relating to Mr Kistner;

(d) The Respondent’s decision of 26 March 2020 not to uphold her appeal against the grievance decisions relating to Mr Kistner;

(e) The OH process being sabotaged by the Respondent adding inaccurate details to the referral form, not updating the Claimant about changes and then suspending the OH process; Page 55 of 60

(f) Her dismissal; and

(g) Her medical insurance being terminated (i.e. the decision to terminate her employment with immediate effect). Disability (s. 6 Equality Act 2010)

[7]The Respondent admits that the Claimant was disabled at the Material Time (14 January 2022 to 15 February 2023) by virtue of anxiety and depression. Failure to make reasonable adjustments (sections 20 and 21 Equality Act 2010)

[8]From what date did the Respondent know or could it reasonably have been expected to know that the Claimant had anxiety and depression? In a discussion at the beginning of the second day of the hearing Ms Reindorf clarified that the Respondent accepted that it had actual knowledge from 18 October 2021 (in light of a document beginning at page 856.

[9]Did the Respondent have the following provision, criterion or practices (“PCP”):(a) a requirement for employees to have returned to work or be certified fit to return to work, including not having any further absences?

(b) a requirement for the Claimant to maintain a certain level of attendance at work in order not to be subject to the risk of dismissal;

[10]Did the PCP/s put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability? The Claimant relies upon the following substantial disadvantages: (a) Her disability increased the likelihood of sickness absence, and therefore the likelihood of: (1) Not being able to return to work; (2) being dismissed and (3) her medical insurance being terminated.

[11]Did the Respondent know, or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantages? Page 56 of 60

[12]Would the following adjustments have alleviated the alleged substantial disadvantage(s) for the Claimant caused by the alleged PCP:(a) Offering her a phased return to work;

(b) Redeployment to other roles and/or branches;

(d) Obtaining further advice from OH;

(e) Considering mediation between the various parties involved;

(f) Discounting any disability related absences from counting against the Claimant for the purposes of the capability process;

(g) Offering the Claimant an opportunity to improve and/or setting targets by which her absence levels were to be monitored.

[13]Was it reasonable for the Respondent to have to take these steps and if so, when?

[14]Did the Respondent fail to take these steps? Discrimination arising from disability (s. 15 Equality Act 2010)

[15]Did the Respondent know, or could it reasonably have been expected to know that the Claimant had a disability? From what date?

[16]Did the following amount to unfavourable treatment by the Respondent:(a) failing to consider all alternatives to dismissal, in particular a move to the flagship store in view of the Claimant’s disabilities;

(b) dismissing the Claimant.

[17]Did the following things arise in consequence of the Claimant’s disability: (a) Sickness absence

[18]Was the treatment of the Claimant a proportionate means of achieving a legitimate aim? The Respondent states that its legitimate aims were: (a) Not having an employee as part of its headcount indefinitely when there was no reasonable prospect of the employee returning to work to perform the full role of manager and sustaining an acceptable level of absence, given the Page 57 of 60 impact of this on customer service and the rest of the team who covered her work. Unfair dismissal (s. 98 Employment Rights Act 1996)

[19]Was the Claimant dismissed for a fair reason? The Respondent will say the Claimant was dismissed fairly by reason of capability. (a) Did the Respondent genuinely believe that the Claimant was no longer capable of performing her duties?

[20]Did the Respondent act reasonably, in all the circumstances, in treating this reason as sufficient to dismiss the Claimant? In particular:(a) Did the respondent adequately consult the Claimant on all matters relating to the capability process?

(b) Did the respondent carry out a reasonable investigation, including finding out about the up-to-date medical position (including at the appeal stage);

(d) Did the Respondent consider all alternatives to dismissal?

REMEDY

[21]If the Tribunal considers that the Claimant was discriminated against, harassed and/or victimised:(a) Has the Claimant suffered financial loss as a result of the discriminatory treatment?

(b) What is the appropriate award for injury to feelings, including personal injury?

(d) Would it be appropriate to make an award for aggravated damage?

(e) Did the Respondent unreasonably fail to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures?

(f) Would it be just and equitable to award an uplift in compensation? If so, how much (subject to a 25% maximum uplift)?

(g) Should a Financial Penalty be awarded? Page 58 of 60

[26]If the Tribunal finds that the Claimant was unfairly dismissed:(a) What financial losses has the dismissal caused the Claimant?

(b) Has the Claimant taken reasonable steps to mitigate her loss? If not, for what period of loss should the Claimant be compensated?

(c) Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure has been followed, or for some other reason (in accordance with the decision in Polkey v AE Dayton Services Ltd)?

(d) Does the statutory cap of fifty-two weeks’ pay apply?

(e) What basic award is payable to the Claimant, if any?

(f) Would it be just and equitable to reduce the basic award as a result of any conduct of the Claimant before the dismissal? If so, to what extent?

[1]In a liability judgment sent to the parties on 21 February 2025 (“the Liability Judgment”) the Tribunal upheld some of the claimant’s complaints. The remedy hearing then took place on 15 and 16 January 2026 with deliberations on 25 February 2026 and 13 April 2026.

[2]The parties had agreed a bundle prior to the remedy hearing containing 391 pages (“the Main Bundle”). The parties had sent one another and the Tribunal a number of additional documents shortly before the remedy hearing began and these were included in a supplementary bundle to which additional documents were added during the hearing so that, by its end, the bundle contained 61 pages (“the Page 1 of 48 Supplementary Bundle”). Page references in these reasons are to the Main Bundle unless otherwise stated.

[3]The Tribunal had before it witness statements from the following witnesses who all gave oral evidence: 3.1. The claimant; 3.2. Mr C Dinnage, one of the respondent’s Store Leaders; and 3.3. Ms I Wildman, the respondent’s Sourcing Manager for Retail Recruiting within the EMEIA region.

[4]The parties’ preparation for the remedy hearing had not proceeded smoothly. Disappointingly, despite both sides being professionally represented, the Case Management Orders the Tribunal had made on 8 August 2025 had not been complied with. The consequences of this for the remedy hearing itself were that: 4.1. The fact that the claimant was applying for reinstatement or re-engagement had only become clear when her witness statement was served shortly before the remedy hearing. In the event, the claimant changed her mind about that at the beginning of the second day of the remedy hearing when her position became that she was seeking an award of compensation only; 4.2. The parties had not agreed a detailed list of issues before the remedy hearing – and, indeed, did not do so until 3pm on the second (and final) day of the hearing; 4.3. It was necessary for submissions to be made in writing. The Tribunal made orders on 16 January 2026 requiring written submissions to be exchanged by 23 January 2026 and any responses to those submissions by 30 January 2026. Both parties provided written submissions and written submissions in response. 4.4. It became clear in the course of the remedy hearing that there might be further disclosure relevant to the calculation of the claimant’s losses. The Tribunal ordered that this be provided by 23 January 2026. This resulted in the respondent providing with its written submissions:(1) a Schedule of Restricted Stock Units (“RSU”);

(2) a spreadsheet of RSU values on vesting dates;

(3) a “Confirmation of Release” document;

(4) a table confirming percentage pay increases; and

(5) a pay spreadsheet for the claimant. (together “the Respondent’s Additional Documents”). 4.5. The respondent’s procedure for ill health management had, rather surprisingly, not been included in the Main Bundle. It was provided by email during the hearing. It was dated 4 August 2022 and is at page 59 of the Supplementary Bundle.

[5]A further disappointing aspect of the parties’ preparation for the remedy hearing was that they had agreed virtually nothing in relation to the claimant’s claimed Page 2 of 48 losses prior to the remedy hearing, not even her net weekly pay. An unusual amount of detail remained unagreed, even after submissions and submissions in response had been exchanged. This was reflected by the fact that the claimant’s representative was still revising his calculation of the claimant’s net weekly pay in his response to the respondent’s closing submissions.

[6]The Tribunal regrets that it has not been able to finalise and send this judgment to the parties sooner but regards this as being largely the consequence of the shortcomings in the parties’ preparation which we have detailed above. If these had not occurred, deliberations would have probably begun on the second day of the remedy hearing and a decision would have been reached more quickly. That would have been very likely to result in this judgment and reasons having been The issues

[7]The starting point for the question of remedy was obviously the Liability Judgment. In that judgment the Tribunal concluded as follows in relation to the complaints that were upheld: 7.1. Section 15 arising from claim: The claimant’s dismissal was unfavourable treatment because of sickness absence which arose in consequence of the claimant’s disability and, although there was a legitimate aim, dismissal was not a proportionate means of achieving it as there were less severe means of achieving it: allowing the claimant to attempt to return to work; allowing a phased return; trying to get more occupational health input; asking for permission to contact her treating physician. We concluded that none of these less severe means of achieving the legitimate aim would have prevented the respondent from dismissing the claimant within a reasonable period if the claimant had been unable to achieve a satisfactory level of attendance (see [202] of the Liability Judgment in particular). 7.2. Unfair dismissal: the dismissal was unfair because:(1) the respondent did not carry out a reasonable investigation. We concluded it should have sought further medical evidence – we followed, essentially, the same line of reasoning as in the section15 “arising from” claim;

(2) the respondent could reasonably have been expected to wait longer before dismissing the claimant in light of the factors we set out at [207] of the Liability Judgment. 7.3. Reasonable adjustments: the respondent had failed to make one reasonable adjustment: a phased return to work should have been offered in October 2022 ([194.1] of the Liability Judgment).

[8]The parties had by the end of the remedy hearing agreed that the issues for the Tribunal to decide in relation to remedy were as set out in Appendix one to these reasons. Findings of fact Page 3 of 48 Introductory findings

[9]The claimant began employment with the respondent in May 2005. She worked initially at its Bluewater store. By the time of her dismissal she was employed at its Bromley store. We make further findings in relation to her various roles in the context of our findings about mitigation below.

[10]The claimant experienced difficulties in her employment from 2019 when she presented three grievances. The most significant factor in those difficulties was her working relationship with Mr Kistner. We considered events concerning the claimant and Mr Kistner in detail in the Liability Judgment. However, we remind ourselves that we did not accept the claimant’s account of her difficulties with Mr Kistner and did not accept that his treatment of her amounted to unlawful discrimination.

[11]The claimant moved to the respondent’s Bromley store in July 2020. Her employment proceeded without great incident until January 2022 (see [103] of the Liability Judgment). However from January 2022 the claimant had substantial periods of absence from work. We considered these in particular between [105] and [110] of the Liability Judgment but it is worth noting that: 11.1. We found the upset caused by a postponement in these proceedings to have been a factor in the period of sick leave which began on 10 January 2022 at [106]; 11.2. We found at [108] that, when the claimant attempted and failed to return to work in April 2022, Mr Dinnage understood her concerns in relation to how she had been treated by the respondent to no longer be limited to the treatment she alleged she had suffered at the hands of Mr Kistner at the Bluewater store but also to be about her treatment by the respondent more generally.

[12]The claimant was invited to an incapacity meeting in September 2022. Our findings in relation to the incapacity process resulting in her dismissal were primarily between [138] and [154] of the Liability Judgment. The claimant was dismissed with a payment in lieu of notice on 23 November 2022. The respondent subsequently agreed with her that her employment would continue until 14 February 2023, the end of what would have been her notice period, so she could until that date continue to benefit from the private medical insurance provided by the respondent.

[13]The claimant brought three claims in the Tribunal. The first was submitted on 9 February 2020, the second on 14 August 2020 and the third, following the claimant’s dismissal, on 21 February 2023. The complaints upheld were all contained in the third claim, presented following her dismissal. The first two claims failed in their entirety. Findings relevant to the question of mitigation The period during which the claimant applied for jobs Page 4 of 48

[14]Following her dismissal the claimant applied for around 130 jobs (pages 200 to 221). The correspondence relating to them (pages 222 to 262) dates from the period 1 December 2022 to 18 November 2023. She was not successful in any of those applications. She has not made job applications since November 2023 although she had some contact with recruitment consultants in March 2024 (page 263).

[15]Her evidence about why she stopped looking for employment and when is not entirely clear. She says in general terms that it was because her mental health had deteriorated ([3] of her witness statement). However, she refers to still looking for work as of 6 March 2024 ([28] of her witness statement). By May 2024 she was considering retraining as an aesthetician but in the end she says that she did not begin a course which would have enabled that in September 2024 because her mental health “was already significantly impaired” ([29] of her witness statement). Overall, we find that the claimant stopped looking for work in 2024 because she believed that her mental health meant that she was no longer able to sustain a search for employment. The claimant’s role with the respondent

[16]The claimant worked as a manager in the respondent’s Bromley store. She managed around 15 employees. She worked under the Senior Managers and Store Leader of the store. She had held that role since 2020. Prior to that she had been a manager in the respondent’s Bluewater store between 2016 and 2020. Before that she had “completed a short career experience … for a HR Admin role for Turkey” (her description of the role, page 276). Before that she had worked at the respondent’s Bluewater store between 2005 and 2015. As such, for the 17 years prior to her dismissal, she had worked overwhelmingly as a manager in a retail environment. The nature of the roles the claimant applied for after her dismissal

[17]We make the following findings in relation to the jobs that the claimant applied for in 2023: 17.1. On the face of the documentation, the claimant applied for only one retail role (a store manager at IRD consultancy, page 201) and she did not provide any significant evidence of having applied for other retail roles in her witness evidence. By contrast, she applied for many roles outside the retail sector: in sales (e.g. New Business Sales Manager, page 201), in b2b (e.g. Director, B2B acceptance, Visa, page 202), in banking (e.g. Senior Manager Personal Banking Operations, Monzo Bank, page 202) and in HR (e.g. HR Business Partner, Global E-Commerce, London, Tik Tok). We find that she was as such applying for roles in relation to which she had very little if any relevant experience. (We accept that she had a CIPD qualification but, as detailed above, she had very little HR specific experience, certainly not at the level of seniority one would expect of someone applying for an HR Business Partner role.) 17.2. She applied for many roles which were clearly more senior than the one she had held and which, on any realistic view, would have represented very Page 5 of 48 significant promotions from the role she held with the respondent. Roles falling into this category include a Head of Sales role (page 202), Head of Key Accounts at Miele (page 203), Head of Sales (HR Technology) (page 203), and Director of Operations, Trilogy paying $400,000 a year (page 204). Under cross-examination the claimant claimed to have worked at director level prior to joining the respondent in 2005 (when she was about 27). We find this claim implausible in light of both her age and the work experience and qualifications which she detailed in the document at page 281 and 282. We find that she did not work at director level before joining the respondent.

[18]In summary, we find that the roles for which the claimant applied, with very few exceptions, reflected the sectors in (and management levels at) which she aspired to work. They were not roles in the sector of which she had extensive experience or in other sectors but at a realistic level of seniority. She was, therefore, with very few exceptions, applying for jobs that she had no real prospect of being offered. Roles for which the claimant might have applied

[19]Mr Dinnage’s evidence in relation to the question of jobs for which the claimant would have been suited was at [24] of his witness statement. He identified roles such as store manager/department or floor manager or deputy manager roles within retail stores. Ms Wildman identified similar roles at [13] of her witness statement. These are, we find, roles which would have aligned far more closely with the claimant’s experience and seniority than the roles for which she actually applied.

[20]Ms Wildman set out at [6] of her witness statement the experience that the respondent seeks in job candidates and suggests that it is often found in employees of large retailers such as Ikea, John Lewis and Marks and Spencer. She also suggests that employees from the fitness, hospitality and airline industries are often well-suited to employment with the respondent because of “the level of customer interactions and demands”. She expresses the view that for the same reason such brands and sectors are also interested in employing employees of the respondent and will headhunt them ([8]).

[21]Ms Wildman relied on a LinkedIn “Talent insights” report at page 358 in support of her evidence. Realistically, the report is of limited evidential value: Ms Wildman was unable to say how many employees the respondent had in the UK (she settled on a few tens of thousands), but the numbers covered by the report are small. For example, at page 364 it shows 16 employees having left to work in retail and 16 having been recruited from retail roles. However, we accept her evidence as summarised in the previous paragraph as true because she has significant professional experience in relation to these matters, we found her to be credible, and her evidence also accords with what common sense would suggest.

[22]Ms Wildman’s evidence was that there were as at the date of her witness statement over 99 results for Retail Manager vacancies within 20 km of London. Examples of these vacancies are at page 380. We accept that as of the date of Ms Wildman’s statement there were a significant number of vacancies which, if the claimant had been well enough to work, were apparently more suitable to her skills and Page 6 of 48 experience than the vacancies for which she applied in 2023. Finally, Ms Wildman referred to a “Retail Leadership Hiring Trends” for London between 2023 and 2026 produced by Indeed. In respect of 2023 the report notes “Hiring steadily cooled from post-pandemic peaks, transitioning to a more measured approach after extraordinary growth” (page 387). The report then considered later periods and concluded “London remains a resilient hiring marked, especially for premium and luxury retail leadership, attracting global brands and talent”.

[23]Ms Wildman also produced a further Indeed “hiring insights” report (Supplementary Bundle pdf page 51) with information about retail manager jobs within 25 miles of London. What would have happened if the claimant had applied for retail management jobs from November 2022 to November 2023 instead of the jobs for which she in fact applied

[24]These findings relate to the counter-factual world in which the claimant applied for retail (or other) management jobs at a realistic level of seniority but had, as a result of the unlawful discrimination of the respondent, suffered psychiatric injury as set out in our findings below. That is to say, in this counter-factual world, her health is as it in fact was but her job applications are focused on retail (or other) management jobs at a realistic level of seniority, which they in fact were not.

[25]Taking the evidence in the round, we find that the claimant had very substantial middle level management experience within a retail environment. We find that if she had focused her job applications on middle level management jobs in retail environment – so focusing on businesses such as John Lewis, Marks and Spencer, and large supermarkets – she would have obtained a role at a similar level by 12 months after her employment had ended on 14 February 2023, so that is to say by 14 February 2024.

[26]In reaching this finding we have taken full account of the claimant’s state of health. We have found below that the unlawfully discriminatory acts of the claimant did cause damage to her mental health but her own evidence (see [14] and [15] above) was that she was still engaged in the search for work to some extent as late as March 2024. Equally, Dr McLaren said in his report that she was able to look for work throughout 2024 (see [56] below).

[27]We have therefore specifically factored into this finding the fact that we have found that her health was affected from summer 2023 by the unlawful discrimination she suffered (see in particular our findings at [53] below) and the assessment of Dr McLaren that, although she was able to look for work in 2023 and 2024, her performance at interview would probably have been affected by the unlawful discrimination, and the claimant’s submissions about the difficulties encountered by those with mental and physical ill-health seeking work. We have also factored in the other aspects of the ill-health that she suffered from during this period. That is to say, the date of 14 February 2024 takes account of these matters and, but for them, we would have identified an earlier date. Page 7 of 48

[28]We have also considered whether our findings at [57.2] below mean that we should consider the possibility that, having found alternative employment, the claimant would have lost it within a few months (and whether the ensuing loss of income was a loss flowing from the unlawful discrimination). We have concluded that this is not something in relation to which we should make findings of fact given that neither party put forward a case in relation to the possibility of the claimant finding and then losing new employment. However, if we had considered it, we would have concluded that in fact the chain of causation had been broken because the reasons for her unfitness to work by the summer of 2024 were overwhelmingly unrelated to her treatment by the respondent.

[29]In terms of how much the claimant would have been paid on finding new employment, it has not been part of her case that, if she had obtained a similar level role elsewhere, it would have been at a lower salary. Nor has any significant evidence been adduced in relation to this issue. We therefore find that she would have obtained work at the same overall level of remuneration and that consequently she would not have suffered ongoing losses after 14 February 2024. The claimant’s health and what would have happened if she had not been dismissed with effect from February 2023

[30]These findings relate to the counter-factual world in which the claimant had not been subjected to unlawful discrimination and dismissed, but rather had returned to work in November 2022. Her health would not, as such, have been negatively affected by the unlawful discrimination (which was her dismissal and matters very closely related to her dismissal).

[31]The parties have taken diametrically opposed positions in relation to this issue. The claimant says, in principle, that she would have returned to work and would still be employed by the respondent. The respondent says that the claimant would inevitably have been dismissed by around the end of February/early March 2023 because she would not have maintained satisfactory attendance. The claimant’s return to work and the respondent’s procedures

[32]If the claimant had not been dismissed in November 2022, but rather had returned to work with the reasonable adjustment of a phased return, she would have done so against the background of her previous absence record.

[33]We found at [114] of our Liability Judgment that “by any sensible measure, the claimant’s absence level over the previous five years was high”. We referred to the absence record at page 1524 of the liability hearing bundle which showed seven considerable periods of absence in 2022.

[34]The respondent’s procedure in relation to health related absences included the following: Short-term absence Page 8 of 48 If you have a high number of short-term absences, Apple will take steps to support and address this. Itʼs important for us to understand the reasons for your absence. We want to know what you’re doing to improve your attendance and health, and how we can help. You and your manager discuss these attendance issues and set targets for improvement during return to work meetings. Your level of absence is considered unacceptable when you’ve been absent from work three times over a rolling 3-month period. This may be subject to disciplinary action, up to and including dismissal… When your absence is considered unacceptable, your manager conducts a thorough investigation, taking into account the reasons for your absence, what kind of support could help you, what actions you’re taking to improve your health and attendance, and whether disciplinary action is required in line with Apple’s Disciplinary Policy and Procedure. Long-term ill health From time to time, you may experience health concerns that impact your performance and attendance at work. Any long-term ill-health conditions are treated on an individual basis. Your manager will meet with you to understand your medical condition and try to make reasonable adjustments (where applicable) to support you in the following situations. Long-term continuous absence If your absence lasts longer than 4 weeks, itʼs considered a long-term absence. During any long-term absence, Apple's primary aim is to help you return to work at the earliest reasonable date. However, we know this time varies depending on your illness. Make sure to always follow the absence notification procedure outlined above. While you’re out, maintain regular contact with your manager so they can fully understand your illness, and offer you any support you may need during your time away and for your return to work. You and your manager should agree on the frequency of contact and set up regular calls to touch base during your absence. Your manager may also want to meet with you during this period to discuss your health in further detail. These meetings will be prearranged at a mutually convenient time. We ask that you make reasonable efforts to attend any meetings with your manager. If you need any reasonable adjustments to attend the meeting, let your manager know. If you don't attend meetings, company sick pay may be withheld. Your manager may complete an Understanding Medical Condition form and refer you to Apple’s Occupational Health Services to obtain a medical report relating to your condition, or to seek permission to contact your GP. This gives your manager access to relevant medical advice about your return to work, which could include a phased return or other reasonable adjustments recommended by the OHS Advisor or your doctor. Page 9 of 48 For more information, see Occupational Health Services. Long-term intermittent absence because of an ongoing health concern If an ongoing health condition causes you to have intermittent absences from work, always follow the absence notification procedure outlined above. Your manager meets with you to understand the reasons for your absences and may complete an Understanding Medical Condition form. Your manager may also refer you to Apple’s Occupational Health Services to obtain a medical report relating to your condition, or to seek permission to contact your GP. This gives your manager access to relevant medical advice, including reasonable adjustments (where applicable) to support your continued attendance at work. For more information, see Occupational Health Services. If your levels of absence remain unacceptable despite reasonable adjustments being implemented to support you, your employment may come to an end on grounds of incapacity.

[35]Against the background of the respondent’s policy and the claimant’s poor sickness record, we find that if the claimant had not been given notice of dismissal in November 2022 Mr Dinnage, as her manager, would have: 35.1. Issued the claimant with a final written warning as a result of her poor attendance in 2022; 35.2. Sought further advice from occupational health; 35.3. Identified an expected level of attendance going forward, setting a target level of sickness absence of between 5 and 8%; 35.4. Arranged for the claimant to return to work on a phased return.

[36]We find that the phased return to work would have lasted between four and six weeks. We find that, if the claimant had not achieved the expected level of attendance within this period, the respondent would have conducted a further investigation which would have included obtaining up to date medical evidence.

[37]We find that at the conclusion of this investigation the respondent would have dismissed the claimant on notice if it had concluded, in light of its experience of the phased return to work and the further medical advice, that the claimant was not going to be able to sustain an acceptable level of attendance. We find that such a dismissal would have been neither unfair nor an act of discrimination arising from disability. We find that the procedure for reaching this decision would from the beginning of the investigation have taken around six weeks. As such, the earliest date the claimant might have been given notice of dismissal would have been around 12 weeks after her return to work. In this counter-factual world the claimant would have returned to work around 22 November 2022 (the date of her dismissal) Page 10 of 48 and the 12 week period would have therefore ended on or around 14 February 2023.

[38]The question for us, therefore, is whether the claimant would have been able to sustain an acceptable level of attendance from November 2022 or whether she would in fact have been dismissed in a manner that was neither unfair nor unlawfully discriminatory at some point following her return. The evidence about the claimant’s health and events affecting it after November Factors relevant to the claimant’s health after November 2022 which were unrelated to the unlawful discrimination.

[39]In the period between the claimant’s notice of dismissal in November 2022 and the date of the remedy hearing a number of matters have, most unfortunately, affected the claimant’s physical and mental health which are unrelated to the unlawful discrimination which we found she had suffered in the Liability Judgment. In summary: 39.1. First, the claimant had required treatment for cancer in 2005 and, sadly, required further treatment following a further cancer diagnosis in November 2022. Happily, the recurrence was less serious than the cancer in 2005. The claimant did not require chemotherapy and had radiotherapy for just three weeks. Her evidence is that she would have required “little, if any, time off work” as a result of this ([14] of her witness statement). 39.2. Secondly, the claimant experienced serious family stresses which had begun in the summer of 2024 with the death of a family member and which had then resulted in a family dispute, which resulted in the claimant being threatened in early 2025. The claimant accepts this incident had a serious impact on her until a non-molestation order was obtained in March 2025 ([14] and [15] of her witness statement). 39.3. Thirdly, the claimant had to have a significant operation on 21 June 2025 ([42] of her witness statement). In addition, as of September 2025, she was awaiting further surgery ([44] of her witness statement).

[40]In addition, in this counterfactual world in which the claimant was not given notice of dismissal in November 2022, it is necessary to consider the effect on her employment of factors that were already in existence by 22 November 2022: 40.1. First, there would have been the ongoing effect on the claimant’s mental health and/or enthusiasm for working for the respondent of matters which had occurred in her employment prior to her dismissal but which we did not find to be acts of unlawful discrimination. In particular the events concerning Mr Kistner, which had begun in 2019. 40.2. Secondly, the claimant’s mental health as of November 2022, that is to say at a date prior to the acts that we have found to be unlawful discrimination Page 11 of 48 potentially affecting it. At that point the claimant already suffered from both PTSD and a recurrent depressive disorder. We make more detailed findings about her state of health in November 2022 at [49] below. The Personal Independence Payment (“PIP”) award

[41]We turn now to some of the medical and other evidence relevant to our assessment of how likely it is in light of these and other matters that the claimant would have been able to sustain a level of attendance following her return to work which would not have resulted in her being dismissed.

[42]There is a decision dated 29 November 2023 of the First-tier Tribunal in relation to the claimant’s entitlement to PIP at page 117. It concluded that the claimant was entitled to the daily living component at the enhanced rate from 9 January 2023 to 8 January 2025 and that she had during this period “severely limited ability to carry out the activities of daily living set out below”. It also concluded that she was entitled to the mobility component at the enhanced rate for the same period because she was “severely limited in [her] ability to mobilise”. It said: The Tribunal found that, by reason of her mental health diagnoses including PTSD and anxiety with element of panic and agoraphobia, Mrs Yusuf meets the criteria to be awarded points for the activities and descriptors set out above. In reaching that conclusion the Tribunal placed particular weight upon [the claimant’s] oral evidence and documentary evidence from her psychiatrist. [page 117].

[43]We find that the PIP award is of significance because it suggests that the claimant was suffering from very poor mental ill health as early as January 2023, although her evidence is that at that point her mental health had not been substantially affected by her dismissal. However the PIP award is, in reality, a stand alone document to which we give less weight that the claimant’s medical records and the report prepared by Dr McLaren. McLaren evidence

[44]The most significant medical evidence is that provided by Mr McLaren, the claimant’s treating psychiatrist, and in particular his report of 15 December 2025 (“Dr McLaren’s report”) at page 349.

[45]The respondent makes a number of criticisms of Dr McLaren’s report/the way in which it was produced which have some merit. These include ([5.4] of the respondent’s closing submissions): 45.1. Dr McLaren was the claimant’s treating physician, not an independent expert; 45.2. The respondent did not have the opportunity to ask Dr McLaren any questions and knew nothing of his report until 24 December 2025; 45.3. The letter of instruction to Dr McLaren was not disclosed and it was not clear which documents he had seen; Page 12 of 48 45.4. He had not, according to the claimant’s evidence, seen the Liability Judgment; 45.5. He was under the mistaken impression that the claimant was dismissed because of a cancer diagnosis; 45.6. There were other factual inaccuracies in his report and he had not been called to give evidence.

[46]Accordingly the respondent submitted that we should not give significant weight to Dr McLaren’s report.

[47]We note, however, that the respondent did not object to Dr McLaren’s report being admitted or, for example, apply for an adjournment and for an order permitting it jointly or alone to instruct an independent medical expert.

[48]We do give Dr McLaren’s report less weight than we would give a similar report prepared by a jointly instructed independent expert. However, it is nevertheless a useful document (as the respondent implicitly accepts at [5.5] of its closing submissions). In particular, it represents a highly informed opinion on what the claimant’s medical records show and also sets out the view of Dr McLaren on a variety of relevant issues. Further, despite the limitations arising as a result of the factors listed at [45] above, we find that it reads as a balanced report written by a conscientious professional. This is not least because, whilst parts of the report are helpful to the claimant’s case, other parts of it definitely are not.

[49]The nature of the claimant’s ill-health in November 2022: Dr McLaren’s opinion is that at the point of dismissal the claimant was not suffering from a depressive episode but retained a vulnerability to further depressive episodes in a depressive disorder and also to a recurrence of symptoms of post-traumatic stress disorder (page 350, [3.1.1] to [3.1.2]). He noted the risk of recurrence as “high” in relation to her PTSD symptoms “given the persistence of her PTSD symptoms”. He again emphasise the risk being high at [3.1.4]. We find that Dr McLaren’s report accurately records the claimant’s state of health in November 2022.

[50]Her ability to return to work around the time of her dismissal: Dr McLaren’s opinion is that the claimant was regaining confidence and had the clinical capacity to resume her role with appropriate support measures at that time.

[51]Her ability to provided effective/sustained service: At [3.3] on page 351 the claimant’s solicitors asked Dr McLaren: Had Mrs Yusuf not been dismissed in November 2022 and returned to work, would he have expected her to provide effective/sustained service with minimal or no further absences?

[52]His response was: Page 13 of 48 3.3.1 Yes. From the psychiatric viewpoint. She had however just had a recurrence of breast cancer which may have impacted on her fitness. Commenting further on that is outside of my expertise.

[53]The effect of dismissal on her condition: Dr McLaren analysed this issue by reference to different periods of time: 53.1. Immediate impact – November 2022 to June 2023: Dr McLaren did not identify any immediate impact ([3.4.2] at page 352). He observes that Mr Papalekas’s clinical notes observe that in the week after dismissal “she was stable and had coped well with the dismissal” [3.4.2]. 53.2. July 2023 to August 2024: Dr McLaren noted that the claimant’s mental state had deteriorated by July 2023 and that she was “deeply upset” about the unfair dismissal but commented “it is difficult to infer from the evidence the process which led to her deterioration” and that the pattern of onset for her acutely distressed state in July 2023 was “unclear”. He noted at [3.4.7] that in this period her reaction to losing her job seemed to be the main focus at a session in January 2024 but “throughout that period, she also had PTSD symptoms related to her trauma at work in 2019 and ACE’s [adverse childhood experiences] that appeared to be the main reason for her distress”. He noted she had improved significantly by May 2024. He then concluded in respect of this period that: Between July 2023 and August 2024, the unfair dismissal was probably exacerbating her mental state through shame at being unemployed and while that probably made her PTSD symptoms more difficult to deal with, this is difficult to quantify. 53.3. November 2024 to June 2025: at [3.4.8] on page 354 Dr McLaren concludes that the major stressors during this period did not include the claimant’s dismissal. He identifies the major stressors as being an Employment Tribunal Hearing in January 2025 and family problems. He concluded: The shame associated with losing her job was probably still present at this time but did not appear to be prominent and its significance is difficult to quantify. 53.4. September 2025 onwards: [3.4.9] page 354 Dr McLaren concludes that: In summary, during this phase Mrs Yusuf has been struggling with PTSD, an Anxiety spectrum disorder (Agoraphobia (ICD 11 6B02) and Panic disorder (ICD 11 6B01)) and a Depressive episode in a Recurrent depressive disorder. While it is possible that the shame associated with losing her job has continued to adversely impact her mental state and self-esteem, making her symptoms more difficult to cope with, this has not been prominent in the record and is difficult to quantify. Page 14 of 48

[54]The prognosis: Dr McLaren concluded that the claimant was at “significant risk” of recurrence of PTSD because of the pattern of her PTSD “prior to” the “unfair dismissal”. ([3.4.11] page 354). Dr McLaren concluded as follows in relation to whether the claimant’s prognosis had been affected the respondent’s actions: In respect of whether Mrs Yusuf’s prognosis has been adversely affected by the unfair dismissal, acting through shame at being unemployed and being treated unfairly, this is difficult to quantify. While this is probable, the effect needs to be considered alongside the other factors influencing prognosis, namely; the trauma at Apple; the ACE’s; the severe family stress; her [cancer and the [July] 2025 operation].

[55]What would her health have been like/how would her employment have progressed had the dismissal not occurred: Dr McLaren’s conclusions in relation to this issue included the following: 55.1. In relation to her state of health he states at [3.5.3]: Given the number of other independent stressors detailed above, Mrs Yusuf would probably still be functionally impaired today by PTSD, Recurrent depressive disorder and an Anxiety spectrum disorder but the intensity of her symptoms would be less. 55.2. He added: “the effect of the unfair dismissal appears to have been most significant between July 2023 and August 2024”. 55.3. In terms of her employment, he notes that although it was “reasonable for her to return to work in autumn 2022” that would have introduced an “additional level of stress even with appropriate support” and [3.5.5 at page 356]: … it is difficult to say whether she would have had sufficient protection to prevent the deterioration in her mental health in 2023 when having to deal with the recurrence of breast cancer. 55.4. So far as the position after 2023 is concerned, he concludes [3.6] at page 356: Had Mrs Yusuf not been dismissed unfairly and not developed a recurrence of the breast cancer, then she would probably have been able to continue working through 2023 and into 2024 until the major family stress erupted. This was sufficiently severe and so close to her initial trauma at Apple and her ACE’s to have put her at significant risk of re-traumatisation and recurrence of PTSD. 55.5. But then goes on to say: It is difficult to state with any level of probability whether, if she had remained at work and completed the processing of her ACE’s in 2023, that that would have prevented a recurrence of the PTSD in reaction to the severe family stress in 2024 and 2025. Page 15 of 48

[56]Whether “discriminatory dismissal” affected her ability to secure alternate employment Dr McLaren’s conclusions at [3.8] on page 357 are to the effect that the dismissal adversely affected her confidence and self-esteem (which would have probably affected her performance at interview) but that did not prevent her from seeking alternative employment in 2023 and 2024. Conclusion on what would have happened if the claimant had not been dismissed with effect from February 2023

[57]In light of the evidence before us, we find that if the claimant had not been dismissed, but rather had returned to work, there would have been: 57.1. A 50% chance that she would have been dismissed fairly and in a way that was not unlawfully discriminatory on or before 14 February 2024; 57.2. A 75% chance that she would have been dismissed fairly and in a way that was not unlawfully discriminatory between 15 February 2024 and 31 August 2025; 57.3. A 100% chance that she would have been dismissed fairly and in a way that was not unlawfully discriminatory at some point in September 2025.

[58]We make these findings in particular in light of: 58.1. The opinion of Dr McLaren as expressed in his report, in particular his careful expressed opinions recorded at [53] and [55] about:(1) the claimant’s actual state of health in the relevant period; and

(2) his analysis of what her state of health would have been in the relevant period if she had not been dismissed. 58.2. The claimant’s state of health when she was given notice; 58.3. The claimant’s sickness absence record, the respondent’s sickness absence procedure and our findings above about what would have happened in relation to how the respondent would have dealt with an unacceptable level of sickness absence going forward; 58.4. The PIP report which is evidence supporting the proposition that the claimant was more seriously ill than Dr McLaren believed from early 2023 (i.e. before the dismissal began to affect her significantly); 58.5. The fact that the claimant had been unable to get over the events of 2019 involving Mr Kistner despite not working with him for a prolonged period prior to her dismissal. We find it is clear that these would have continued to affect how she felt about working for the respondent if she had returned to work in late 2022. There is clearly a risk that returning to work for the respondent would have had the same effect on the claimant in the autumn of 2022 as it had had in April 2022 (see our findings in particular at [108] of the Liability Judgment). Page 16 of 48 58.6. The reason that we have concluded that the percentage chance of the claimant being dismissed fairly, and in a way that was not unlawfully discriminatory, would have increased overtime is really two-fold. First, and most importantly, it reflects Dr McLaren’s assessment that the claimant’s health worsened very considerably over the relevant period as a result of factors which were unrelated to the dismissal. Secondly, we conclude that the view of the claimant of the respondent’s historic treatment of her was such that it was likely that that relationship would become more and not less difficult over time. The extent of the personal injury suffered by the claimant as a result of the respondent’s discriminatory treatment of her

[59]The claimant’s amended schedule of loss (page 9) did not include a claim for personal injury, but such a claim had appeared by the time the claimant’s final schedule of loss was prepared on 8 January 2026 (pdf page 9 of the Supplementary Bundle). The schedule states that the unlawful discrimination Materially exacerbated the Claimant’s pre-existing PTSD and recurrent depressive disorder. It contributed to a deterioration in her mental health through shame, loss of self-esteem, unemployment and delayed treatment, thereby prolonging her illness and adversely affecting her prognosis alongside other significant stressors. Dr McLaren’s report repeatedly accepts that the dismissal:• Worsened the severity of her symptoms

• Prolonged the duration of her illness

• Reduced her psychological resilience to later stressors

• The dismissal acted as a material aggravating factor, not a background or trivial one.

[60]As such the focus of the claimant’s personal injury claim is the alleged effect of the respondent’s unlawful discrimination on her pre-existing PTSD and recurrent depressive disorder.

[61]In light of the contents of Dr McLaren’s report, we find that at the point of her dismissal in November 2022 the claimant was not suffering from a depressive episode but was vulnerable to further depressive episodes and a recurrence of symptoms of PTSD (see [49] above).

[62]We turn to what happened after the claimant was given notice of dismissal. For the purposes of this section of our judgment, when we refer to the consequences of “the dismissal”, we are referring to the consequences of the unlawful discrimination (such discrimination either being the dismissal or matters closely related to it). 62.1. November 2022 to June 2023: in light of the contents of Dr McLaren’s report (see in particular [53.1] above), we find that the dismissal did not result in the claimant suffering a further depressive episode or a recurrence of PTSD symptoms. Page 17 of 48 62.2. July 2023 to August 2024: in light of the contents of Dr McLaren’s report (see in particular [53.2] above), we find that the dismissal “made her PTSD symptoms more difficult to deal with”. Dr McLaren does not say that in this period the claimant suffered a further depressive episode. He also says that the extent to which her dismissal “made her PTSD symptoms more difficult to deal with” “is difficult to quantify”. 62.3. November 2024 to June 2025: in light of the contents of Dr McLaren’s report (see in particular [53.3] above), we find that the harm caused in this period by the dismissal was minor. 62.4. September 2025 to date of remedy hearing: in light of the contents of Dr McLaren’s report (see in particular [53.4] above), we find that the harm caused in this period by the dismissal was minor.

[63]We further find, taking the evidence in the round, that at no point from November 2022 to the date of the remedy hearing has the claimant suffered from a psychiatric illness that she would not have suffered from in any event. However, what happened at various points during that period was that a part of the harm she suffered as a result of a variety of causative factors resulted from the dismissal.

[64]Prognosis: Turning to the effect of the dismissal on the claimant’s prognosis, in light of Dr McLaren’s report (see in particular [54] above), we find that the dismissal has resulted in her prognosis being slightly worse than it would otherwise have been. We say “slightly” in light of the other factors that Dr McLaren listed as being relevant to this question at [3.4.15] of his report.

[65]The position overall: We find in light of Dr McLaren’s report (see in particular [55.1] above) and the other evidence available to us that if the dismissal had not occurred the claimant would as at the date of the remedy hearing have been “functionally impaired” by PTSD and a recurrent depressive disorder, but the intensity of her symptoms would have been less.

[66]Overall, therefore, we find that the dismissal had the following effects on the recurrent depressive disorder of the claimant: 66.1. It made her PTSD symptoms “more difficult to deal with” during the period July 2023 to August 2024; 66.2. It resulted in a minor increase in the harm suffered from November 2024 to June 2025; 66.3. It slightly worsened her prognosis as at the date of the remedy hearing; 66.4. It slightly worsened the intensity of her PTSD symptom and recurrent depressive disorder as experienced as at the date of the remedy hearing. The injury to feelings suffered by the claimant Page 18 of 48

[67]We make the following findings in relation to the extent to which the “dismissal” (adopting the meaning we have given to that term at [62] above) caused injury to the claimant’s feelings.

[68]The problem with the claimant’s witness statement – which was not resolved by her oral evidence – is that it makes only a very limited attempt to disentangle: 68.1. The injury to feelings she says she suffered from the personal injury she alleges; 68.2. The effect on her life of the injury to feelings from the effect on her life of all the other stressors she accepted she experienced following her dismissal.

[69]Further, rather than explaining the injury to feelings that she suffered in a detailed way – for example, by its effect on her day-to-day life – she has instead from [17] of her witness statement given what is by and large simply a chronological account of her state of health and the medical treatment that she received in the relevant period.

[70]We find that over time the dismissal: 70.1. Caused her to feel shame (because it had resulted in her loss of employment and the associated income and benefits); 70.2. Resulted in her feeling that she had lost more than a job – because she saw her work at the respondent as being akin to a “vocation” ([4] of her witness statement) with a consequent and negative effect on her sense of identity; 70.3. Resulted in a feeling that she has lost something important in her life ([19] of her witness statement); 70.4. Resulted in her experiencing feelings of rejection and worthlessness and reduced confidence; 70.5. Contributed to feelings of social isolation ([25] of her witness statement);

[71]We find that those effects continue to the current day and have as such been experienced by the claimant for around 3 years and 4 months.

[72]However, we find that the claimant was not initially that upset by her dismissal. The notes of a therapy session with Mr Papalekas on 24 November 2022 record: She reported feeling overall well and that she was expecting this outcome from Apple. She said that she is ready to start looking for a new job, she acknowledged her loss, she is aware that will take some time to process it, she said Apple was like a ‘3rd baby to me’, having been working for them for 18 years has left a void… She said she feels anxious about finding a new job but she is positive she will. She said she wants to still pursue the Court case/tribunal against Apple in May 2023. She said she believes this dismissal was unfair as Page 19 of 48 Apple dismissed her as being ‘unfit’ to work. She disagrees strongly with this but she is much less affected by interest now compared to the past.

[73]We make two further findings as a result of this note and other evidence: 73.1. First, to the extent that she suffered injury to feelings following the termination of her employment, this was not due only to the dismissal. It was due also to the way she felt she had been treated by the respondent over a period of time prior to the possibility of her dismissal arising. 73.2. Secondly, as a result of this, her feelings about losing her employment with the respondent were mixed. On the one hand, we find that she was proud of her long association with what she regarded as a prestigious brand; on the other hand, she remained deeply upset by the events of 2019 and how her absence had been handled in 2022. The claimant’s pay and benefits

[74]The position of both the claimant and respondent in relation to the value of pay and benefits has evolved over time. We have taken as our starting point for our findings in relation to these matters the parties’ closing submissions and responses to closing submissions. The claimant’s basic pay

[75]The respondent’s position ([2.1] closing submission) was that the claimant’s net weekly pay as at the date of her dismissal was £967.01, which it says is explained by cell AP 16 in the “YUSR pay spreadsheet v2AR” included in the Respondent’s Additional Documents. This appears to be an average of net pay paid between 4 April 2022 and March 2023, but we have not been provided with all the underlying documents.

[76]The claimant’s position (various unnumbered paragraphs on page six of her closing submissions) is that the payslips between pages 102 and 108 suggest gross annual basic pay of £70,338 and that the pay slip at page 106 shows a 12 week payment in lieu which would have resulted in gross annual basic pay of £70,334.

[77]We find the evidence relied upon by the claimant more persuasive and find that she had annual gross basic pay of £70,334 as of 22 November 2022. We find the claimant’s evidence more persuasive because the question for us is what would the claimant have been paid if she had attended work normally? The respondent’s calculation is achieved by looking back at what she was actually paid during a period when she was regularly off work because of sickness.

[78]The claimant said this produced net weekly pay of £1005.50 up to and including 30 September 2023 in light of the tax calculation at page 7 of their closing submissions. A further and more detailed tax calculation was produced in the claimant’s response to the respondent’s closing submissions, which reduced the figure to £989.70. The respondent does not take issue with the method of calculation in their submissions in response. Page 20 of 48

[79]We therefore find that as of 22 November 2022 the claimant’s net weekly pay was £989.70.

[80]The claimant says that she would have got a pay rise from 1 October 2023 of 5%. The respondent submitted that pay rises were not automatic but were based on performance. It said that because the claimant had “achieved expectations” her pay increase in 2023 would have been expected to be 3%.

[81]In light of the respondent’s submissions, and the document “Table confirming % increase” in the Respondent’s Additional Documents, we conclude that the claimant has failed to prove that she would have received a pay increase of more than 3% and accept the respondent’s figure. Consequently we conclude that from 1 October 2023 her net pay would have been £989.70 + 3% = £1019.391 Employer pension contributions

[82]The claimant’s position is that the respondent contributed 8% of her gross salary as pension contributions (page 7 of their closing submissions). The claimant reduces this to a weekly figure of £110.68.

[83]The respondent does not provide a percentage figure but says that the weekly employer pensions contributions are equal to the employee’s pension contributions which are the amount of salary sacrifice (counter schedule of loss FF14). They give a weekly figure of £116.58.

[84]The difference between the parties’ positions is minimal, but the respondent appears to have based its figure on more information than that available to the claimant, and so we find that as of 22 November 2022 the respondent paid £116.58 in employer pension contributions to the claimant per week. Fringe benefits

[85]In their closing submissions the only fringe benefits claimed by the claimant are for Appleservice (£59.94 per month) and Apple TV (At £29.94 per month), so benefits with a monthly value of £89.88 or an annual value of £1078 and so (see claimant’s calculation page of closing submissions) a weekly value of £20.73.

[86]The respondent has not provided a competing figure, saying that “the claimant had led no evidence” ([11] of the counter schedule), but does not contend there that the benefits were not provided. Nor does it suggest (see [10] of the counter schedule) that the value of such benefits was included in the calculation of net weekly loss at FF11.

[87]We find that the claimant did receive the benefits outlined at [85] above and that their weekly value as of 22 November 2022 was £20.73.

[88]The claimant’s overall tax burden based on the figures we have found above is 26.83% (£70334 – (52 x £989.70) = £18869.60/£70334 = 26.83%). Applying the Page 21 of 48 same to the fringe benefits which were taxable gives them a weekly value for the purpose of the loss calculation £15.17. The RSU scheme

[89]We find that the claimant was during her employment granted various shares in the respondent’s RSU scheme. She did not have to pay for the shares. If she was still employed on the “vest date” she was able to sell them or retain them. In the Respondent’s Additional Documents the respondent provided details inter alia of the date of grant, date of vesting, value per share at the date of vesting and the amount which the claimant would have received on selling the shares when they vested – such amount being the value of the shares less tax at 48.35%. We accept the information provided by the respondent in the Respondent’s Additional Documents as being correct.

[90]We have found above that there would have been a 100% chance that her employment would have ended by 30 September 2025. Consequently shares that would have vested after that date are irrelevant for the purposes of calculating loss.

[91]We find that the amount that the claimant would have received in respect of shares granted under the RSU scheme with a vest date falling before 30 September 2025 would have been as set out in the table below. We find that she would have sold them when they vested and so the value lost to her is the value shown in the “Total value of shares on vesting date” column.

[92]To the extent that there is a conflict between the documents relied on by the claimant and those provided by the respondent in relation to the RSU scheme, we prefer those provided by the respondent because it is clear that it had access to more detailed information and documentation than the claimant as reflected in the Respondent’s Additional Documents which were disclosed as part of the closing submissions. We accept that the shares would have been taxed as the respondent asserts in light of the documents included in the Respondent’s Additional Documents entitled “Confirmation of release”. We have adopted the exchange rate put forward by the claimant because the respondent has not objected to it nor put forward its own exchange rate. Date of grant Vest date Number Value per Total value of Total value £:$ £ value of shares share on shares on less tax at exchange after tax vested vesting vesting date 48.25% rate on on date vesting vesting date date 27.09.20 15.10.23 9 $178.72

$1608.48

$832.38 0.82 £682.55 26.09.21 15.04.23 11 $165.21

$1817.31

$940.46 0.80 £752.37 26.09.21 15.10.23 10 $178.72

$1787.20

$924.88 0.82 £758.40 26.09.21 15.04.24 10 $172.69

$1726.90

$893.67 0.80 £714.94 26.09.21 15.10.24 10 $233.85

$2338.50

$1210.17 0.76 £919.73 26.09.24 15.04.25 10 $202.14

$2021.40

$1046.07 0.75 £784.55 Page 22 of 48 25.09.22 15.10.23 7 $178.72

$1251.04

$647.41 0.82 £530.88 25.09.22 15.10.24 7 $233.85

$1636.95

$847.12 0.76 £643.81 The Employee Share Purchase Plan (“ESPS”)

[93]We find that the claimant made contributions to the ESPS from her pay and was then entitled to buy shares in Apple from those contributions at the end of the relevant six month period. We find that under the ESPS the claimant was entitled to buy shares at the lower of the price on the first and last days of the six month period and that the claimant also received a 15% discount on the relevant price.

[94]We find, by reference to the information contained in the pay slip at page 106, that the claimant had contributed at least £2355 into the scheme for the relevant six month period because that is the amount which the pay slip shows as refunded to her.

[95]We note that in cell 14M of the document YUSR pay spreadsheet in the Respondent’s Additional Documents the claimant is shown as making a gain of £555.36 under the ESPS in August 2022.

[96]We find, in light of this information and documentation, that the claimant would had made a gain of at least £353.25 per six month period (her contributions of £2355 per six months would have enabled her to buy shares of that amount plus 15% (the discount)). We do not have the details of the relevant six month periods and therefore for the sake of simplicity we find that the “loss” of the ESPS caused the claimant a loss of £353.25 x 2 ÷ 52 = £13.59 per week The overpayment of notice monies

[97]There is no dispute that the claimant received a payment in lieu of notice and then was also paid her salary for the period 22 November 2022 to 14 February 2023. The amount of compensation to be awarded to her must therefore be reduced by the net PILON. The parties agree that the gross PILON was £16231.80. The claimant has not contradicted the respondent’s net figure of £11604.12 (counterschedule FF13). This figure is close to the overall tax burden put forward by the claimant (see [88] above) and the difference is to the claimant’s advantage. We therefore find that the amount by which the net loss of the claimant is to be reduced is £11604.12. Benefits received by the claimant

[98]The disclosure of the claimant in relation to the benefits paid to her was inadequate. There is a document at pdf page 60 of the Supplementary Bundle showing that she received Employment and Support Allowance (“ESA”) of £84.80 from 5 July 2023 and £129.50 from 28 September 2023. This amount increase to £140.55 from 9 April 2025.

[99]At [18.3] of the respondent’s submissions there is an explanation of how the ESA Scheme works, which the claimant has not contradicted in their response to the Page 23 of 48 respondent’s closing submissions. We consequently find that the claimant received ESA of £77 per week (the assessment rate) from 14 February 2023 to 17 May 2023 and the work related activity rate of £92.05 from 17 May 2023 to 5 July 2023. Overall, therefore, we find that the amounts of ESA which should be deduced from her loss are as follows: Period Weekly amount 14 February to 17 May 2023 £77.00 18 May to 4 July 2023

£92.05

5 July 2023 to 27 September 2023

£84.80

28 September 2023 to 8 April 2025

£129.50

9 April 2025 onwards £140.55 The Law The remedies for unfair dismissal: orders and compensation

[100]Having found a claim of unfair dismissal well-founded, section 112(2) of the Employment Rights Act1996 (“the 1996 Act”) requires the Tribunal to explain that orders of reinstatement or re-engagement may be made under section 113, and the circumstances in which they may be made. The Tribunal must ask the claimant whether they wish the Tribunal to make such an order. If the claimant expresses such a wish, the Tribunal may make such an order. The claimant did not, ultimately express such a wish in this case.

[101]If no such order is made, the Tribunal shall make an award of compensation calculated in accordance with sections 118 to 126 of the 1996 Act which may include both a basic award and a compensatory award. Basic award

[102]An employee who is unfairly dismissed is entitled to a basic award. The basic award is calculated in accordance with section 119 of the 1966 Act. The parties have agreed the amount of the basic award due in this case. Compensatory award

[103]An employee who is unfairly dismissed is in principle also entitled to receive a compensatory award. This should be calculated in accordance with section 123 of the 1996 Act.

[104]We do not consider the law relating to compensatory awards for unfair dismissal further because the parties agreed that compensation would be awarded under the discrimination head. The remedies following a successful discrimination claim Section 124 of the Equality Act 2010 (“the Equality Act”) Page 24 of 48

[105]Section 124 of the Equality Act deals with the remedies available if a claim of discrimination is successful.(1) This section applies if an employment tribunal finds that there has been a contravention of a provision referred to in section 120(1).

(2) The tribunal may— (a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate; (b) order the respondent to pay compensation to the complainant; (c) make an appropriate recommendation.

(3) An appropriate recommendation is a recommendation that within a specified period the respondent takes specified steps for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the proceedings relate—(a), (b) … … (5) It must not make an order under subsection (2)(b) unless it first considers whether to act under subsection (2)(a) or (c). (6) The amount of compensation which may be awarded under subsection (2)(b) corresponds to the amount which could be awarded by the county court or the sheriff under section 119. General principles

[106]The underlying principle that is applied when calculating compensation is that it should put the claimant in the position they would have been in if no discrimination had occurred. Only those losses caused by the discrimination are recoverable. However, unlike the position in tort, there is no requirement that the loss suffered be ‘reasonably foreseeable’. Compensation can be awarded in respect of all harm that arises naturally and directly from the discrimination, at least in cases where the discrimination was deliberate and overt (Essa v Laing

[2004] ICR 747

, CA and Abbey National plc and Hopkins v Chagger

[2009] ICR 624

, EAT).

[107]The amount of compensation to be paid may be reduced for various reasons. The relevant issue in this respect is whether the claimant might have been dismissed even if no discrimination had happened The leading authority is Chagger v Abbey National plc

[2010] IRLR 47

CA.

[108]When calculating losses in respect of which compensation is to be awarded the following principles apply which are relevant to this case: 108.1. Past loss is calculated to the date of hearing and separately because interest attaches to it; 108.2. The Recoupment Regulations do not apply and so the value of state benefits which reduce the losses caused by the discrimination should be taken into account; Page 25 of 48 108.3. The duty to mitigate applies. Consequently a claimant must take reasonable steps to minimise the losses suffered as a consequence of the discrimination. The burden of proving a failure to mitigate is on the respondent and it must prove that the claimant acted unreasonably. In Citibank NA v Kirk

[2022] IRLR 925

the EAT adopted in relation to compensation for discrimination the principles relating to mitigation set out by Langstaff P in relation to compensation for unfair dismissal in Lindsey v Cooper Contracting Ltd

UKEAT/0184/15

(22 October 2015, unreported): 108.3.1. The burden of proof in relation to mitigation is on the wrongdoer. 108.3.2. If evidence as to mitigation is not put before the employment tribunal by the wrongdoer, it has no obligation to find it. 108.3.3. What has to be proved is that the claimant acted unreasonably; they do not have to show that what they did was reasonable. 108.3.4. There is a difference between acting reasonably and not acting unreasonably. 108.3.5. What is reasonable or unreasonable is a matter of fact. 108.3.6. In determining reasonableness the views and wishes of the claimant should be taken into account as one of the circumstances, although it is the tribunal's assessment of reasonableness and not the claimant's that counts. 108.3.7. The tribunal is not to apply too demanding a standard of the victim; after all, they are the victim of a wrong. They are not to be put on trial as if the losses were their fault when the central cause is the act of the wrongdoer. 108.3.8. The test may be summarised by saying that it is for the wrongdoer to show that the claimant acted unreasonably in failing to mitigate. 108.4. Approach when failure to mitigate found: In Edward v Tavistock and Portman NHS Trust

[2023] EAT 33

the EAT held that in relation to mitigation for a discriminatory dismissal the Tribunal should not award a percentage of full compensation to represent the chance that in the absence of a failure to mitigate the claimant would have obtained work. Rather the Tribunal should decide on the balance of probabilities when the claimant would have found other work if they had not acted unreasonably. Grossing up and uplifts

[109]Financial loss is awarded net. It is taxable in the claimant’s hands excluding the first £30,000. It must be grossed up to allow for the fact that it is taxable. Page 26 of 48

[110]In De Souza v Vinci Construction UK Ltd

[2017] IRLR 844

, the Court of Appeal found that that the 10 per cent uplift which followed the decision of the court in Simmons v Castle

[2012] EWCA Civ 1039

should apply to employment tribunal awards in respect of non-pecuniary losses, because the language of the Equality Act made plain that awards in tribunals are to be comparable with those in the County Court. That is reflected in the annually updated Presidential Guidance on the Vento bands which has been issued in respect of claims issued on or after 11 September 2017. Compensation for personal injury

[111]There is no requirement for the claimant to obtain expert medical evidence before an award for personal injury can be made (Hampshire County Council v Wyatt EAT 0013/16).

[112]A claimant must demonstrate that the discriminatory acts actually caused the psychiatric damage in order to prove liability and claim compensation. They do not, however, need to demonstrate that the injury was reasonably foreseeable (Sheriff v Klyne Tugs (Lowestoft) Limited

[1999] ICR 1170

). Harm that has more than one cause and pre-existing disorders

[113]A problem that often arises in claims for personal injury is that the harm may have more than one cause and/or the claimant may have a pre-existing disorder. The Court of Appeal considered awards for personal injury in Tribunal claims in Hatton v Sutherland and others

[2002] ICR 613

. Lady Justice Hale stated that: 41 Hence if it is established that the constellation of symptoms suffered by the claimant stems from a number of different extrinsic causes then in our view a sensible attempt should be made to apportion liability accordingly. There is no reason to distinguish these conditions from the chronological development of industrial diseases or disabilities….

[114]Lady Hale went on to set out 16 different ‘practical propositions’ relevant to determining whether an employer is liable for the personal or psychiatric injury suffered by the claimant. The last two of these — propositions numbers 15 and 16 — specifically addressed the position:(i) where the causes of the harm are multifarious and some of the harm is not due to the wrongful act of the employer; and

(ii) where a claimant is predisposed to injury by a condition that was not caused by the employer’s wrongdoing. These two propositions were: (15) Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment (paras 36 and 39). (16) The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress related disorder in any event (para 42). Page 27 of 48

[115]The EAT recently considered and explained these principles in A and B v C Limited, D, E, F, and G

[2025] EAT 165

as follows:47. In a case where it appears that there are, or have been, one or more other mental health conditions which are not attributable to the discriminatory treatment, difficult issues of causation may arise. See Thaine v London School of Economics

[2010] ICR 1422

and the definitive analysis in BAE Systems (Operations) Ltd v Konczak

[2017] EWCA Civ 1188

;

[2018] ICR 1

. The key principles were captured in this passage in Olayemi v Athena Medical Care

[2016] ICR 1074

: “19. Although there is a degree of tension between these cases, the essential principles are not in doubt. The Claimant must prove that the Respondent’s wrongdoing was a material cause of her psychiatric condition. If she does so the Respondent must take her as he finds her; it is no defence for him to say that she would not have suffered as she did but for a susceptibility or vulnerability to that kind of psychiatric condition. The Employment Tribunal will award compensation for the psychiatric condition, although it may discount the compensation to take account of any risk that she may in any event have suffered from the psychiatric condition to which she was vulnerable. That will depend on the chance that she would have suffered some other cause - presumably harassment or similar - to trigger her condition, and also on the seriousness of that cause. 20. It is open to the Respondent to show that there was another material cause for the Claimant’s psychiatric condition - that is a cause going beyond mere vulnerability or susceptibility. Even so it is not a defence for the Respondent to say that there was another material cause for her psychiatric condition unless the resultant harm is truly divisible. If, however, the resultant harm is truly divisible the Tribunal concerned must estimate and award compensation for that part of the harm for which the Respondent is responsible. In so doing it will apply the tortious measure of damage: it will identify the harm for which the Respondent is responsible and award compensation for that harm, as opposed to the harm which would have occurred in any event. These propositions - including the propositions concerning divisibility - are not unique to claims arising out of a psychiatric condition. 21. As this analysis shows, the Employment Tribunal should always take account of any existing vulnerability or any divisible cause when it awards compensation. In the former case it will make allowance for the chance that the Claimant would at some point have suffered the psychiatric condition in any event. In the latter case it will not award compensation for any harm which would have occurred in any event by reason of the other cause. How the Employment Tribunal takes account of such a factor will depend on the case.”

48. For a given individual, the issues of whether the discriminatory treatment has, in the requisite sense, caused, or contributed to, a loss of remuneration arising from impaired fitness to work, and whether it has caused or contributed Page 28 of 48 to what amounts to psychiatric damage that could sound in an award of damages for personal injury, need to be considered separately; and the relevant conclusions will not necessarily be the same. See, for example, the discussion in Olayemi at [31]. The Judicial Studies Board Guidelines (“the JSB Guidelines”)

[116]The JSB Guidelines provide guidance on appropriate levels of awards for pain, suffering and loss of amenity. They draw a distinction between psychiatric damage generally and post traumatic stress disorder. For psychiatric damage the categories are “Severe”, “Moderately Severe”, “Moderate” and “Minor”. Compensation for injury to feelings

[117]Compensation may include compensation for injury to feelings. The general guidelines that apply to injury to feelings were set out by the Court of Appeal in Vento v Chief Constable of West Yorkshire Police

[2003] ICR 318

, CA. These guidelines provide for three broad bands: 117.1. A top band applicable to the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment; 117.2. A middle band applicable to serious cases that do not merit an award in the higher band; and 117.3. A lower band applicable to less serious cases, such as where the act of discrimination is an isolated incident or one-off occurrence.

[118]The President of the Employment Tribunals issues periodic guidance on the appropriate award in each Vento band. The guidance which applies to claims submitted after 6 April 2022 provides that: 118.1. Awards in the lower band should fall between £990 and £9900; 118.2. Awards in the middle band should fall between £9900 and £29600; and 118.3. Awards in the upper band should fall between £29600 and £49300, with the most exceptional cases capable of exceeding that upper limit.

[119]It is important, of course, to bear in mind what an award for injury to feelings is. In Vento the Court of Appeal said: An injury to feelings award encompasses subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression.

[120]The precise level of an award for injury to feelings will depend on the facts of the case which will depend upon the evidence given. It is not simply a matter for submissions. Evidence as to the injury to feelings is required (Esporta Health Clubs v Roget

UKEAT/0591/12

). Awards for injury to feelings are compensatory. They Page 29 of 48 should fully compensate the claimant without punishing the respondent for only proven unlawful discrimination (Ministry of Defence v Cannock

[1994] IRLR 509

at 524). However, a discriminator takes their victim as they find them, and compensation should not be reduced because a victim is particularly sensitive. A more resilient claimant may therefore receive a lower award (Komeng v Creative Support

UKEAT/0275/18

, unreported).

[121]Awards for injury to feelings that are too low would diminish the respect for the policy underlying anti-discrimination legislation. However excessive awards could have the same effect. Awards need to command public respect (Alexander v Home Office

[1988] ICR 685

[122]A global award covering all the acts of discrimination may usually be made in respect of injury to feelings (ICTS (UK) Ltd v Tchoula

[2000] IRLR 643

EAT.

[123]Care should be taking when applying Vento. The Court of Appeal described the bands by reference to what was done to the claimant, but the award is for injury to feelings. There may well be a connection between the seriousness of the discrimination and the seriousness of the injury to feelings but that will not necessarily be the case.

[124]If the injury to feelings is partly attributable to factors other than the discrimination which has been upheld, compensation must be awarded only for the upheld discrimination. This can be done either by a specific focused finding of compensation for the upheld discrimination or by applying a percentage approach. The need to avoid double recovery

[125]In a case where the claimant claims both an award for injury to feelings and also an award for personal injury, the Tribunal must be careful to avoid awarding compensation for the same loss twice. Obviously, when the injury claimed is psychiatric there may be little to divide it from injury to feelings. Uplift under section 207 A of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”)

[126]Section 207A of the 1992 Act provides for awards made in claims under any of the jurisdictions listed in Schedule A2 to the 1992 Act (which include a claim of unfair dismissal and a claim of disability discrimination) to be increased or decreased if it appears to the Tribunal that an employer or employee has unreasonably failed to comply with a relevant code of practice. In summary, in the event of such a failure compensation may be increased or decreased by up to 25% if the Tribunal concludes that it is just and equitable in all the circumstances to do so.

[127]The relevant code of practice in this case is “the ACAS Code of Practice 1: Code of Practice on Disciplinary and Grievance Procedures 2015” (“The ACAS Code”). Page 30 of 48 Submissions

[128]As we have noted above, the parties made closing written submissions and then each provided a response to the other’s closing submissions. There were no oral submissions. Summarising the parties’ written submissions would serve no useful purpose and therefore we do not do so. Conclusions Financial loss What was the Claimant’s net weekly pay at the time of her dismissal?

[129]In light of our findings of fact at [75] to [79] above we find that the claimant’s net weekly pay at the time of her dismissal was £989.70 and would have increased by 1 October 2023 to £1019.39 if she had not been dismissed. Has the Claimant taken reasonable steps to mitigate her loss of earnings? In particular: What steps has the Claimant taken to mitigate her loss? To what extent were those steps successful? Were those steps reasonable?

[130]Our findings of fact in relation to the steps taken by the claimant to mitigate her loss are set out at [14] to [18] above. Those steps were wholly unsuccessful because the claimant did not obtain another job.

[131]We conclude that the respondent has proved that the claimant acted unreasonably in approaching her search for a new job as she did. She acted unreasonably because she applied for jobs which, with very few exceptions indeed, she had no real prospect of being offered If the Claimant has not taken reasonable steps to mitigate, for what period of loss should the Claimant be compensated?

[132]In light of our findings above, and in particular those at [25], we conclude that if the claimant had not acted unreasonably, but rather had focused her job applications on middle level management jobs in a retail environment, she would have found a job by 14 February 2024 which would have given her the same income and benefits of the same value to those she had prior to dismissal. That is to say that the fact that she acted unreasonably has resulted in her being unemployed for a significant period after the point at which she would have found work if she had not acted unreasonably. She should therefore be compensated for her losses for the period to 14 February 2024. What are the Claimant’s losses of past net earnings taking into account Page 31 of 48 mitigation?

[133]We set out our conclusions in relation to the claimant’s losses of past net earnings in “The Calculation” section below. We have not awarded any amount for the period prior to the claimant’s employment ending on 14 February 2023. None was claimed in the claimant’s updated schedule of loss dated 8 January 2026 (see page 2 of the Supplementary Bundle). The question of whether the claimant had lost certain benefits during this period was raised during the claimant’s closing submissions but she did not give any significant evidence about this (referring instead in [3] of her witness statement to her most recent schedule of loss), and we conclude that she did not. What, if any, Chagger deduction should be applied to reflect the chance that the Claimant would have been dismissed in any event?

[134]In light of our findings of fact above generally, and in particular those at [57] to [58], we conclude that the amount awarded to the claimant in respect of her losses should be reduced by: 134.1. 50% in the period to 14 February 2024; 134.2. 75% in the period 15 February 2024 to 31 August 2025; 134.3. 100% from September 2025. 134.4. However, in light of our mitigation conclusions, in practice the Chagger reduction is simply 50%. Was the Claimant overpaid £9,414.44 for her notice period?

[135]The respondent’s counter schedule of loss had in fact identified a net overpayment of £11,604.12 (see its [2.2]). In light of our findings of fact above, and in particular those at [97], we conclude that the claimant was indeed overpaid £11,604.12 in respect of her notice period. Is the Claimant entitled to compensation for past loss of employer’s pension contributions?

[136]In light of our findings of fact above, and in particular those at [82] to [84], we conclude that the claimant is entitled to compensation for lost pension contributions of £116.58 per week for a period of 12 months. Future losses (issues 8 to 9)

[137]In light of our conclusions in relation to both mitigation and Chagger, the claimant is not entitled to any compensation for future losses. Page 32 of 48 Is the Claimant entitled to compensation for losses associated with the Respondent’s Restricted Stock Unit (RSU) scheme?

[138]In light of our findings above, and in particular those between [89] and [92], we conclude that the claimant is entitled to losses associated with the RSU scheme to the extent that the result of the dismissal has been to prevent options provided to her vesting.

[139]In reaching this conclusion we reject the submission of the respondent at [10.4] of its closing submissions that the fact that the RSUs were granted by Apple Inc and not the respondent is a relevant consideration. The loss of the contingent entitlement to shares granted under the RSU arises as a result of the dismissal.

[140]However, the amount of compensation due falls to be reduced in the same way as compensation for lost basic pay, taking account of our findings and conclusions in relation to the issue of mitigation, including our findings in relation to what would have been the overall level of the claimant’s remuneration in new employment if she had not acted unreasonably. The consequence, therefore, is that she is only entitled to losses associated with the RSU scheme in respect of units that would have vested on or before 14 February 2024. The Chagger reduction also applies. Is the Claimant entitled to compensation for losses associated with the Respondent’s Employee Share Scheme Plan (ESSP)?

[141]We conclude in light of our findings at [93] to [96] above that the claimant is entitled to compensation for losses associated with the ESSP and that the losses are as set out in those paragraphs.

[142]However, the amount of compensation due falls to be reduced in the same way as compensation for lost basic pay, taking account of our findings conclusions in relation to the issue of mitigation. The Chagger reduction also applies. Is the Claimant entitled to compensation for losses associated with the provision of Entertainment, Apple TV, Apple music, Apple arcade, 500 GB extra storage and gym membership to employees?

[143]We conclude in light of our findings of fact above between [85] and [88] that the claimant is entitled to compensation associated with the loss of Appleservice and Apple TV (the only two fringe benefits ultimately raised under this heading).

[144]We find that the net weekly value of such fringe benefits was £15.17. However, the amount of compensation due falls to be reduced in the same way as compensation for lost basic pay and taking account of our conclusions in relation to the issue of mitigation. The Chagger reduction also applies. Future loss of benefits (issue 13)

[145]In light of our conclusions in relation to both mitigation and Chagger, the claimant is not entitled to any compensation for future losses. Page 33 of 48 Interest: from what date does interest run? What award of interest is

[146]The parties agree that any interest should be awarded at 8%. The respondent says that it should be awarded from the date of the act of discrimination to the date of calculation. The correct dates for the calculation of injury to feelings are set out at [156] to [160] below. Injury to feelings: what award for injury to feelings is appropriate having regard to the Vento bands?

[147]In light of our findings of fact above, particularly those between [67] and [73], we conclude that the claimant has suffered substantial injury to feelings as a result of the unlawful discrimination which has: 147.1. Caused her to feel shame; 147.2. Resulted in her feeling that she had lost more than a job; 147.3. Resulted in a feeling that she has lost something important in her life; 147.4. Resulted in her experiencing feelings of rejection and worthlessness and reduced confidence; 147.5. Contributed to feelings of social isolation;

[148]We conclude that those feelings continue to the current day and have as such been experienced by the claimant for around 3 years and 4 months, albeit they were less during the first few months following the termination of her employment.

[149]Overall, whilst we also conclude that the injury to feelings has been exacerbated to some extent by matters which did not comprise unlawful discrimination, and perhaps attenuated to some extent by the claimant’s ambivalent attitude towards the respondent, nevertheless overall we conclude that the claimant has suffered substantial injury to feelings over a prolonged period of time as a result of her dismissal which we have found to be an act of unlawful discrimination. We further note that the employment relationship is of great importance to a substantial proportion of the population and therefore it is unsurprising that it being terminated as a result of an act of unlawful discrimination has caused substantial injury to feelings.

[150]In all these circumstances, we conclude that an award for injury to feelings of £15000 (just below the middle of the middle band) is appropriate. In setting the award at this level we have taken careful account of the fact that we have made a separate award for personal injury. If we had not made such an award then we would have made an award for injury to feelings further up the middle band. To what extent, if any, is the Claimant entitled to recover damages for any personal injury? In particular: Page 34 of 48 1) What injury has the Claimant suffered? 2) Is there is a causative link between the injury and any act of the Respondent found to have been discriminatory? 3) Is foreseeability a necessity criterion for the award and if so, did the Respondent foresee, or ought it reasonably to have foreseen, that any of its actions found to have been discriminatory would cause the injury? 4) What contribution was made to the injury other than by the Respondent? 5) In light of the answers to issues 17)(a)–17)(a), and with regard to the Judicial College Guidelines for General Damages, what award in damages, if any, is

[151]We have set out at [66] above the personal injury which we have found the claimant has suffered as a result of the unlawful discrimination by the respondent. The answers to sub-issues 1 and 2 is therefore yes. In terms of sub-issue 3), foreseeability, this is not a hurdle which a claimant must overcome in a claim that they have suffered a personal injury because of an act of unlawful discrimination (Sheriff v Klyne Tugs).

[152]Turning to issue 4), and to propositions 15 and 16 in Hatton v Sutherland, we have found above that there were various causes of the claimant’s mental ill-health following her dismissal. In light of our findings above, and in particular those between [61] and [66], we concluded that the harm is divisible. However, in light of Dr McLaren’s conclusions as summarised above, we have concluded that it is probable that the claimant would have succumbed to a further depressive episode and recurrences of her PTSD symptoms in any event.

[153]We conclude that the state of health experienced by the claimant by the date of the remedy hearing would result in an assessment of “Moderately Severe” under the JSB Guidelines and that the award would, like the majority, come near the middle of the bracket. Consequently, we concluded that if the harm were not divisible, a figure of £35,000 would have been awarded. However, in light of our conclusions in the previous paragraph and our findings of fact above, we conclude that only 20% of the harm was caused by the respondent and so the correct figure is £7,000. We have increased that by 7% to take account of inflation since the publication of the 17th Edition of the JSB Guidelines, so the figure awarded is £7,490.

[154]In setting this amount we have taken account of the fact that we have made a separate award for injury to feelings. If we have made no such award we would have concluded that a higher percentage of the harm (including harm which we have in fact treated as injury to feelings) was caused by the dismissal. Deduction for benefits: should the award be reduced to reflect the Claimant’s receipt of benefits? Interest

[155]The claimant’s financial losses are reduced by the amount of the benefits the claimant received in the period for which losses are to be awarded. The amount of those benefits is as set out in [98] to [99] above. Page 35 of 48 From what date does interest run? What award of interest is

[156]We have concluded that we should award interest in this case to compensate the claimant for the fact that compensation is being ordered (and so will be received) a significant period after the discrimination which we have found.

[157]The Industrial Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 explain how interest should be calculated on awards for unlawful discrimination. The period of calculation for injury to feelings awards is from the date of the act of discrimination complained of until the date on which the tribunal calculates the compensation (regulation 6(1)(a)). In this case we have taken the date of discrimination as 22 November 2022.

[158]The period of calculation for all other sums is from the mid-point of the date of the act of discrimination complained of and the date the Tribunal calculates the award (regulation 6(1)(b)). The mid-point date is the date half-way through the period between the date of the discrimination complained of and the date the Tribunal calculates the award (regulation 4).

[159]In this case, the date the Tribunal has calculated the award is 13 April 2026 (i.e. the second and final deliberation day). From the date of discrimination to 13 April 2026 is a period of 1239 days.

[160]The table at the end of these reasons therefore shows the calculation of interest on the award for injury to feelings for a period of 1239 days and on other aspects of the award for 619 days. The rate of interest is 8%. It is simple interest accruing day to day. Unfair Dismissal – basic award The parties agree that amount of the basic award is £10,563.50, based on a length of service of 17 years. Unfair Dismissal – compensatory award

[161]This issue does not generally arise because the parties agree that any compensation for financial loss should be awarded under the discrimination head.

[162]Notwithstanding this, the parties agreed in their closing submissions that the claimant should receive £500 for loss of statutory rights (see page 6 of the amended counter-schedule of loss appended to the respondent’s closing submissions and [8] of the claimant’s response to the respondent’s closing submissions). Recoupment

[163]The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 do not apply generally because the compensation is awarded under the discrimination head. They do not apply to the Page 36 of 48 award for loss of statutory rights because this is not an amount which forms part of the “prescribed element”. ACAS uplift: would it be just and equitable to award an uplift in compensation on the basis that the Respondent failed to comply with the ACAS Code?

[164]In the final list of issues the claimant’s case was set out on the basis that the failure to adjourn and investigate and consider the medical evidence was a breach of the ACAS Code on Disciplinary and Grievance procedures and that there should be a 25% uplift. In their closing submissions the claimant stated that paragraph 5 of the Code stated that an employer should “establish the facts of each case” and the respondent had failed to do this.

[165]The respondent’s position in their closing submissions was that Holmes v Qinetiq Ltd

[2016] ICR 1016

EAT was binding authority for the proposition that the Acas code did not apply to ill-health dismissals not involving culpable conduct.

[166]In their submissions in response, the claimant stated: The Respondent relies upon the decision of the EAT in Holmes v Qinetiq Ltd

2016 ICR 1016

, EAT as establishing that ill-health dismissals do not fall within the ACAS Code. That was a case decided under the previous edition of the Code and is subject to the interpretation of the Code for which there is guidance provided by the issuers of the Code. As the IDS handbook Vol15 points out at para 3-114 “ It should, however, be noted that Appendix 4 of the non-statutory Acas guide, ‘Discipline and grievances at work’ (July 2020), which accompanies the Acas Code, appears to assume that the Code does apply in cases of ill health, although it recommends a ‘more sympathetic and considerate approach’, particularly if the employee is disabled and where reasonable adjustments at the workplace might enable him or her to return to work.”

[167]In their submissions in response, the respondent submitted that paragraph 5 related to the investigatory stage of a disciplinary process, not to the question of whether the process ought to be adjourned for further evidence to be obtained.

[168]In Holmes v Qinetiq, Simler P summarised the position as follows: In my judgment, if an employer chooses to proceed by reference to the ACAS code on the basis that the situation with which it is concerned is a disciplinary situation, whether that is right or wrong, or if the employer ought to have treated the situation as a disciplinary situation, the code of practice .. is engaged, and any failure to comply may be met with an uplift in compensation.' (at [14]) … properly construed, the code of practice does not apply to internal procedures operated by an employer concerning an employee's alleged incapability to do the job arising from ill health or sickness absence and nothing Page 37 of 48 more. It is limited to internal procedures relating to disciplinary situations that include misconduct or poor performance but may extend beyond that, and are likely to be concerned with the correction or punishment of culpable behaviour of some form or other.' (at [15])

[169]This was a case “arising from ill health or sickness absence and nothing more”. There was no disciplinary situation and the Code did not apply. The claimant is not therefore entitled to any uplift. Holmes v Qinetiq is binding authority in relation to this issue and what the IDS Handbook says about the non-statutory Acas guide does not change this. Grossing up: is the award subject to grossing up? If so, how much?

[170]Awards will be ‘grossed up’ by a Tribunal where the sum to be received by the claimant will be taxed. The purpose is to place in the claimant’s hands the sum she would have held had she not been treated unlawfully, i.e. to compensate for the true net loss.

[171]Grossing up therefore applies to awards where section 401 Income Taxes (Earnings and Pensions) Act 2003 (“ITEPA”) operates to tax the sum in the claimant’s hands. Section 401 applies to payments and other benefits which are received directly or indirectly in consideration or in consequence of, or otherwise in connection with: 171.1. the termination of a person’s employment; 171.2. a change in the duties of a person’s employment; or a change in the earnings from a person’s employment, by the person, or the person’s spouse, blood relative, dependant or personal representatives.

[172]In such cases the recipient enjoys a tax free amount of £30,000 in any particular tax year and will then pay tax on sums in excess of this figure. Neither the tax free sum nor the excess is subject to employee national insurance.

[173]To avoid disadvantage to the claimant, the Tribunal should therefore ‘gross up’ any award it makes over £30,000. This requires the Tribunal to estimate the tax the claimant will have to pay on receipt of the award and add a sum for that tax back on to the award, thus cancelling out the tax burden to the claimant. In other words, where the Tribunal has determined the sum a claimant is to be awarded, the Tribunal will consider the likely tax consequences and increase the award to ensure that the claimant retains the sum to which the Tribunal has determined she is entitled. The relevant tax year for grossing up is the year the award is received by the claimant.

[174]The Tribunal will therefore gross up the sum in excess of £30,000 taking into account the employee’s personal allowance and tax banding (Shove v Downs Surgical Plc

[1984] 1 All ER 7

). This tax rate that should be applied is called the claimant’s marginal tax rate. Page 38 of 48

[175]The parties agree that the award to the claimant should be grossed up to the extent that it exceeds £30,000. Unhelpfully, however, they have not set out how they believe the award should be grossed up. In particular, the claimant has failed to provide any significant details of her current income. We have made very limited findings about this at [98] to [99]. However, not all Employment and Support Allowance (“ESA”) is taxable. The claimant has not set out any position in relation to whether the ESA she receives is taxable (or not). We therefore conclude that the claimant has failed to prove that it is. She has also failed to provide any evidence of significance in relation to her income for the current tax year 2026 to 2027 in which the payment due to her will be made by the respondent. Accordingly, we have treated her as having zero taxable income in the current tax year for the purposes of the grossing up calculation.

[176]The only awards that should be grossed up are those that are calculated using net weekly pay and which will be taxed in the recipient’s hands. Those include financial losses suffered as a result of unlawful discrimination and awards for injury to feelings if connected with the termination of employment (as it is in the case). Awards which will not be taxed include psychiatric injury and interest on any award for psychiatric injury (section 406). The Overall Calculation

[177]The conclusions above result in the following calculation:a. A. Basic award Basic award agreed between the parties at £10,563.50

£10,563.50

b. B. Losses for period 15 February 2023 to 14 February 2024 Net wages 32.5 weeks @ £989.70 (15 February to 30 September 2023) £32,165.25 Net wages 19.5 weeks @£1019.39 (1 October 2023 to 14 February 2024) £19,878.11 Pension contributions (52 weeks at £116.58) £6,062.16 Fringe benefits (52 weeks at £15.17) £788.84 RSU shares vesting before 14 February 2024 £2,724.20 ESPS (52 weeks @ £13.59) £706.68 TOTAL wages and benefits £62,325.24

c. C. Amounts to be deducted in respect of 15 February 2023 to 14 February 2024 Net PILON £11,604.12 ESA 15 Feb to 17 May 2023 @£77 per week (92 days - 13 weeks and 1 days = 13.14 weeks) £1,011.78 ESA 18 May 2023 to 4 July 2023 @£92.05 per week (48 days - 6 weeks and 6 days = 6.85 weeks) £630.54 ESA 5 July 2023 to 27 September 2023 @ £84.8 per week (85 days - 12 weeks and 1 day = 12.14 weeks) £1,029.47 ESA 28 September 2023 to 14 February 2024 @ 129.5 per week (140 days - 20 weeks) £2,590.00 TOTAL amounts to be deducted £16,865.91 Page 39 of 48

d. D. Total financial losses for period 15 October 2023 to 14 February 2024 (B minus C) £45,459.32

e. E. Chagger reduction Chagger reduction of 50% £22,729.66

f. F. Financial losses after Chagger reduction £22,729.66

g. G. Award for loss of statutory rights (unfair dismissal) £500.00

h. H. Damages for personal injury and injury to feeling Damages for personal injury £7,490.00 Damages for injury to feeling £15,000.00

i. I. Interest Interest on injury to feelings for 1239 days (£15000 x 8% x 1239/365)(taxable) £4,073.42 Interest on financial losses for 619 days (£22729.66 x 8% x 619/365)(taxable) £3,083.76 Interest on damages for personal injury for 619 days (£7490 x 8% x 619/365) (not taxable) £1,016.18

j. J. Taxable amounts & the grossing up calculation Basic award £10,563.50 Award for loss of statutory rights (unfair dismissal) £500.00 Financial losses £22,729.66 Interest on financial losses £3,083.76 Damages for injury to feelings £15,000.00 Interest on injury to feelings £4,073.42 TOTAL taxable award £55,950.35 Less £30000 tax free £30,000.00 Less personal allowance of £12570 £12,570.00 Amount to be grossed up at basic rate of tax £13,380.35 Grossing up calculation (£13380.35 divided by 0.8) £16,725.43 TOTAL taxable award after grossing up £59,295.43

k. K. Non-taxable amounts Damages for personal injury £7,490.00 Interest on damages for personal injury £1,016.18 TOTAL non-taxable award £8,506.18

l. L. Total amount payable Total taxable award after grossing up £59,295.43 Total non-taxable award £8,506.18 TOTAL amount to be paid to the claimant £67,801.61 Page 40 of 48 AGREED RE-AMENDED LIST OF ISSUES – REMEDY LIABILITY FINDINGS ............................................................................................... 42 Discrimination ........................................................................................................... 42 Financial loss ........................................................................................................ 42 Future loss of earnings 43 Future loss of employer’s pension contributions 44 Future loss of benefits 45 Non-financial loss .................................................................................................. 45 Injury to feelings 45 Deduction for benefits 46 Unfair Dismissal ....................................................................................................... 46 Basic award ........................................................................................................... 46 Compensatory award ............................................................................................ 46 Recoupment .......................................................................................................... 47 ACAS uplift ............................................................................................................... 47 GROSSING UP ........................................................................................................ 47 Page 41 of 48 LIABILITY FINDINGS

[1]The Claimant brought the following claims against the Respondent and the Tribunal found as set out below:(a) Direct sex discrimination – not well founded and dismissed.

(b) Harassment related to sex – not well founded and dismissed.

(d) Unfavourable treatment because of something arising in consequence of disability – succeeded.

(e) Seven complaints of failure to make reasonable adjustments – six of which were not well founded and dismissed, one of which succeeded (the failure to offer the Claimant a phased return to work).

(f) Unfair dismissal – succeeded. DISCRIMINATION Financial loss

[2]What was the Claimant’s net weekly pay at the time of her dismissal? The parties’ positions are:(a) Claimant: £1,264.60 based on the figure in the Claimant’s P45.

(b) Respondent: £784.54 calculated as 0.58 x gross weekly pay of £1,352.65 based on the Claimant’s annual salary (Respondent to check calculation of tax liability)

[3]Has the Claimant taken reasonable steps to mitigate her loss of earnings? In particular:(a) What steps has the Claimant taken to mitigate her loss?

(b) To what extent were those steps successful?

[4]If the Claimant has not taken reasonable steps to mitigate, for what period of loss should the Claimant be compensated? The parties’ positions are: Page 42 of 48(a) Claimant: reasonable steps to mitigate were taken.

(b) Respondent: full mitigation would have been reasonable within 26 weeks of the effective date of termination.

[5]What are the Claimant’s losses of past net earnings taking into account mitigation? The parties positions are:(a) Claimant: £204,604.63

(b) Respondent: £20,399.86

[6]What, if any, Chagger deduction should be applied to reflect the chance that the Claimant would have been dismissed in any event? The parties’ position are:(a) Claimant: no Chagger deduction

(b) Respondent: lawful dismissal would have taken place within 14 weeks of EDT (at the end of February 2023), resulting in net loss of earnings of £10,984.54.

[7]Was the Claimant overpaid £9,414.44 for her notice period? The parties positions are:(a) Claimant: Claimant to state position in written closing.

(b) Respondent: the Claimant was overpaid and her net loss is therefore £1,570.10.

[8]Is the Claimant entitled to compensation for past loss of employer’s pension contributions? The parties’ positions are:(a) Claimant: £32,471.08

(b) Respondent: £218.78 (2 weeks x 109.39). Future loss of earnings

[9]Is the Claimant entitled to compensation for future loss of earnings? The parties’ positions are:(a) Claimant: £76,124.36 to cover a period of 12 months until mitigation is likely.

(b) Respondent: no award for future loss of earnings should be made in light of the Claimant’s failure to take reasonable steps to mitigate and / or the Page 43 of 48 fact that she would have been dismissed in any event at the end of February 2023. Future loss of employer’s pension contributions

[10]Is the Claimant entitled to compensation for future loss of employer’s pension contributions? The parties’ positions are:(a) Claimant: £11,108.76 to cover a period of 12 months until mitigation is likely.

(b) Respondent: no award for future loss of pension contributions should be made in light of the Claimant’s failure to take reasonable steps to mitigate and / or the fact that she would have been dismissed in any event at the end of February 2023.

[11]Is the Claimant entitled to compensation for losses associated with the Respondent’s Restricted Stock Unit (RSU) scheme? The parties positions are:(a) Claimant: (Claimant to confirm in due course)

(b) Respondent: no award in connection with the RSU scheme should be made for the reasons given in the Counter Schedule of Loss and further because in any event no shares would have vested before the end of February 2023, the date on which the Respondent says the Claimant would have been dismissed (as above). In the alternative, any award made to the Claimant should reflect the value of the shares on the vesting date and subject to the automatic withholding of shares to account for tax, and not any later value.

[12]Is the Claimant entitled to compensation for losses associated with the Respondent’s Employee Share Scheme Plan (ESSP)? The parties positions are:(a) Claimant: (Claimant to confirm in due course)

(b) Respondent: no award in connection with the ESSP should be made since the Claimant received in her final pay a refund of the salary she had sacrificed into the scheme [106 of the bundle].

[13]Is the Claimant entitled to compensation for losses associated with the provision of Entertainment, Apple TV, Apple music, Apple arcade, 500 GB extra storage and gym membership to employees? The parties’ positions are:(a) Claimant: £11,573.80 Page 44 of 48

(b) Respondent: no award should be made since the Claimant led no evidence in relation to this head and has not accordingly proven the loss. The claim for gym membership was made for the first time in the Schedule of Loss served on 13 January 2026 and does not reflect the benefit provided, which is for up to gym membership to the value of £350 per year subject to criteria. Moreover the Claimant would have been dismissed at the end of February 2023 in any event and has furthermore not taken reasonable steps to mitigate her loss. Future loss of benefits

[14]Is the Claimant entitled to compensation for future losses in connection with the benefits listed above:(a) Claimant: £3,959.28

(b) Respondent: no award for future losses should be made since the Claimant would have been dismissed at the end of February 2023 in any event and has furthermore not taken reasonable steps to mitigate her loss.

[15]From what date does interest run? What award of interest is appropriate? Non-financial loss Injury to feelings

[16]What award for injury to feelings is appropriate having regard to the Vento bands?(a) The Claimant seeks an award of £15,000

(b) The Respondent considers that the evidence supports an award at the midpoint of the middle band (at the relevant time): £4,445.

[17]To what extent, if any, is the Claimant entitled to recover damages for any personal injury? In particular:(a) What injury has the Claimant suffered? Page 45 of 48

(b) Is there is a causative link between the injury and any act of the Respondent found to have been discriminatory?

(c) Is foreseeability a necessity criterion for the award and if so, did the Respondent foresee, or ought it reasonably to have foreseen, that any of its actions found to have been discriminatory would cause the injury?

(d) What contribution was made to the injury other than by the Respondent?

(e) In light of the answers to issues 17)(a)–17)(a), and with regard to the Judicial College Guidelines for General Damages, what award in damages, if any, is appropriate?

[18]The parties’ positions are: (a) Claimant: c.£25,000 (a) Respondent: there should be no award for personal injury since the Claimant’s mental ill health was pre-existing and was not caused by the discriminatory treatment. Deduction for benefits

[19]Should the award be reduced to reflect the Claimant’s receipt of benefits? The parties will consider the disclosure made on 16 January 2026 and clarify their its position on exchange of closing submissions.

[20]From what date does interest run? What award of interest is appropriate? UNFAIR DISMISSAL Basic award

[21]The parties agree that amount of the basic award is £10,563.50, based on a length of service of 17 years. Compensatory award

[22]The parties agree that any compensation for financial loss should be awarded under the discrimination head. Page 46 of 48 Recoupment

[23]Do the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 apply to any part of the award for compensation? If so:(a) what is the amount of the monetary award;

(b) what is the amount of the prescribed element; (b) what are the dates to which the prescribed element is attributable; and

[24]Compensation for financial loss is sought under the discrimination head, to which the recoupment provisions do not apply. Insofar as any compensation for financial loss is awarded under the unfair dismissal head, the parties agree that the recoupment provisions apply. ACAS UPLIFT

[25]Would it be just and equitable to award an uplift in compensation on the basis that the Respondent failed to comply with the ACAS Code? If so, how much? The parties positions are:(a) Claimant: the failure to adjourn and investigate and consider the medical evidence was a breach of the ACAS Code on Disciplinary and Grievance procedures. There should be a 25% uplift. Claimant to confirm in closing submissions which section of the Code is said to have been breached.

(b) Respondent: there should be no ACAS uplift. GROSSING UP

[26]Is the award subject to grossing up? If so, how much? 16 January 2026 Page 47 of 48 Employment Judge Evans Approved on: 13 April 2026 Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislationpractice-directions/ Page 48 of 48