Ms S McAuley v Canterbury Christ Church University: 2300946/2021

EMPLOYMENT TRIBUNALS

Case No 2300946/2021

Between

Ms S McAuleyClaimant

Canterbury Christ Church UniversityRespondent

Before

Employment Judge Reed

Ms J Callan (instructed by Counsel) for claimant

Ms K Shields (instructed by Counsel) for respondent

Date 2 October 2023

JUDGMENT

[1]The complaint of unfair dismissal is well-founded. The Respondent unfairly dismissed the Claimant.

[2]The complaint of unfavourable treatment because of something arising in consequence of disability is well-founded and succeeds. The dismissal of the Claimant was such unfavourable treatment.

REASONS

Findings of fact

[1]This is a claim about the Claimant, Ms McAuley, having been dismissal by the Respondent, Canterbury Christ Church University (the University). The University says that it was a fair dismissal, arising from a restructure within the University. Ms McAuley says that it was both an unfair dismissal and also discrimination on grounds of her disability. Claims and issues

[2]Ms McAuley has brought claims for unfair dismissal and discrimination arising from disability. Prior to the hearing the parties had agreed the relevant issues as follows, pA43: Unfair Dismissal

Introduction

[1]If the Claimant is found to have been dismissed:a. What was the reason or principal reason for the Claimant’s dismissal? The Respondent’s case is that the Claimant was dismissed on grounds of redundancy, in the alternative some other substantial reason namely business reorganisation.

b. Was it a potentially fair reason within the meaning of section 98(1)-(2) ERA?

c. Was dismissal fair and reasonable in all the circumstances and was the sanction of dismissal within the range of reasonable responses open to a reasonable employer in the circumstances?

d. Did the Respondent follow a fair procedure? The Claimant’s case is that the Respondent failed to carry out meaningful consultation in the redundancy process and that the redundancy process did not contain enough information.

e. If the procedure was unfair, would the Claimant have been dismissed in any event, in accordance with Polkey v AE Dayton Services Ltd

[1987] ICR 142

? Disability Discrimination Disability – Section 6 Equality Act 2010

[2]Was the claimant a disabled person as defined by s6 of the Equality Act 2010 at the time of any alleged act of discrimination? The Respondent accepts that she was a disabled person under the Equality Act in respect of her depression and General Anxiety Disorder. Discrimination arising from disability – Section 15 Equality Act 2010

[3]Did the Respondent treat the Claimant unfavourably? The Claimant alleges her dismissal is the unfavourable act relied on.

[4]If yes, was that treatment because of something arising in consequence of the Claimant’s disability?

[5]The Claimant asserts the ‘something arising from’ was attendance at work and being fit enough to attend interviews.

[6]If yes, can the Respondent show that the treatment was a proportionate means of achieving a legitimate aim? The Respondent’s case is that if (which is not accepted) the Claimant’s sickness absence and unfitness to attend selection interviews was an effective cause of the Claimant’s dismissal, then dismissal, including the process followed, was a proportionate means of achieving a legitimate aim in any event. The legitimate aim was to carry out a redundancy process in the interests of economy and efficiency, i.e. to address a diminishing requirement for the work undertaken by Faculty Managers as the result of the merger of the two faculties and to achieve the consequent costs savings.

[7]The Tribunal will decide in particular:a. was the treatment an appropriate and reasonably necessary way to achieve those aims;

b. could something less discriminatory have been done instead; and

c. how should the needs of the claimant and the respondent be balanced? 3. At the beginning of the hearing both parties confirmed that the list of issues remained accurate. The Tribunal and both parties agreed that it was appropriate to deal first with issues of liability (and the issue of any potential Polkey deduction). Other issues in relation remedy would then be dealt with, if necessary, at a further hearing. In part this was because, at the time of the hearing, Ms McAuley was in the process of being considered for ill health retirement. The outcome of that process could have a significant impact on the appropriate remedy. Procedure, documents and evidence heard 4. The Tribunal heard evidence from Ms McAuley and considered a statement made on her behalf from Ms Claire Alfrey, although Ms Alfrey did not give evidence. The Tribunal heard evidence on behalf of the University from Dr Lynnette Turner (Pro Vice-Chancellor and Dean of the Faculty of Arts, Humanities and Education) and Simon Wright (Human Resources Business Partner). 5. There was an agreed bundle of 429 pages. References to page numbers are referenced to that bundle unless otherwise indicated. Findings of fact 6. The Tribunal considered the oral evidence and the documentary evidence to which we were referred. All findings of fact are made on the civil standard of proof. That means that they were reached on the basis that they are more likely to be true than not. 7. The written findings are not intended to address every point of evidence or resolve every factual dispute between the parties. The Tribunal has made the findings of fact necessary to resolve the legal disputes before us. Where we have not made findings or made findings in less detail that reflects the extent to which those areas were relevant to the issues and the conclusions reached.

[8]The Respondent, Canterbury Christ Church University, is a university based in Canterbury. It has approximately 15,000 undergraduate / postgraduate students and 1,800 staff.

[9]The Claimant, Shelley McAuley, worked for the University between 1997 and 2020. She was first employed as an Administrative Officer, but soon became Deputy Director of the International office. She progressed through a number of roles, before become Faculty Manager of Business Operations within the Faculty of Education in June 2018.

[10]It is common ground that, at all relevant times, Ms McAuley has been disabled, within the meaning of the Equality Act 2010, as a result of medical conditions of depression and generalized anxiety disorder. As is common with such conditions, her symptoms varied from time to time. On a number of occasions they meant that she took a period of sickness absence, in particular for about two weeks in August 2014, between January and March 2015, between January and April 2016. There was also a substantial period of ill health absence between November 2017 and May 2018. Background to the redundancy process

[11]In January 2018, Ms McAuley had raised a formal grievance against her then line manager, Wendy Taylor, pB41-48. She said that Ms Taylor had failed to support her, had taken credit for her work, undermined her professional credibility in front of others, failed to treat her equitably and insulted her professional integrity.

[12]In February 2018, Giles Polglase, then Faculty Director of Operations, Social and Applied Sciences, upheld the grievance in part, pB49-B62. He concluded that Ms Taylor had failed to support Ms McAuley; failed to treat her equitably and insulted her professional integrity.

[13]In June 2018, Ms Taylor was made redundant during a restructuring exercise and Ms McAuley was appointed Faculty Manager of Business Operations.

[14]In Spring 2019 the Faculty of Education within the University, where Ms McAuley worked was restructured. As part of this process Ms McAuley successfully applied for the post of Faculty Manager (Business Operations and Quality).

[15]Also in 2019 the Faculty of Arts and Humanities was undergoing a similar review process. Both restructures / reviews arose from a background of declining student numbers and, consequently, a reduction in tuition fee income.

[16]One outcome of the review of the Faculty of Arts and Humanities was a proposal that the two faculties should be merged. This was seen as having a number of benefits, both in terms of the portfolio of courses that could be offered and a reduction on the number of roles that would be required, which would create costs savings.

[17]Ms McAuley describes her workload at this time as being ‘overloaded with roles and responsibilities’ She says that there was simply too much work and responsibility for one person to do the job properly. This is denied by the University and it is not necessary to resolve the dispute in detail. It is sufficient to record that the Tribunal accepted Mr Wright’s evidence given during crossexamination that it was, in all the circumstances, a challenging role with a heavy workload. It is plain that Ms McAuley was under significant stress at this point.

[18]Ms McAuley raised her concerns about her workload with her then line manager, Mark Humphreys, Interim Faculty Director of Operations. She describes him as being dismissive of her concerns and their relationship was a difficult one. Again, it is not necessary to resolve every detail of their dispute. The Tribunal accepted Mr Wright’s evidence that Mr Wright struggled in his managerial and leadership role in relation to Ms McAuley and that she found it difficult working with him.

[19]On 11th July 2019, following an argument with Mr Humphreys, Ms McAuley left the workplace and remained at home for several days. When she returned to work Mr Humphreys had been transferred to the Faculty of Arts and Humanities. He was replaced by Xanthia Ash.

[20]On 16th August 2019, Mr Humphreys had a discussion with Ms McAuley in which he told her that the Faculty of Education would be merging with the Faculty of Arts and Humanities. Ms McAuley says that he told her that Dr Turner would be appointed as Dean of the combined faculty and that certain other members of staff would be retained. Ms McAuley and another member of staff were not mentioned as being retained and she took that as a suggestion that she would be dismissed.

[21]Ms McAuley argues that Mr Humphrey’s conversation demonstrates that he had knowledge of the outcome of the merger and consultation process, prior to any form of consultation. She argues that this is evidence that the consultation and the redundancy process was predetermined – particularly since Mr Humphrey’s predictions were largely (although not entirely) accurate.

[22]The Tribunal did not accept this. It is almost inevitable that, in any large organization, some individuals will have advance knowledge of a possible change or restructure. The University accepts that there were conversations ongoing about the possible merger at this point. As a senior member of the management team, Mr Humphrey’s was well placed to be aware of these. It is also inevitable, that a well informed and astute individual will often be able to predict the likely course of such events with some accuracy. Mr Humphries was such an individual. The Tribunal concluded that he was able to make an educated guess about both the suggested merger going ahead and how it would affect a number of members of staff. His comments to Ms McAuley were made on this basis and not because he had been told the outcome of the consultation process or because it had been predetermined. Formal Consultation

[23]A formal consultation process began in February 2020. A consultation document was produced by Dr Turner, who had been appointed as Dean of the Faculty of Education in April 2019, pB74-96. It was shared with the recognized trade unions on 26th February 2020 and then staff in both Faculties on 10th March 2020.

[24]Originally the consultation was expected to end on 8th April 2020, but it was extended as a result of the Covid pandemic to 30th April 2020.

[25]The consultation document confirmed the decision to merge the Faculty of Arts and Humanities and the Faculty of Education. This was intended to reduce the number of mangers required and thereby reduce costs, as well as provide opportunities for collaboration and better working within the reorganised Faculty.

[26]Of particular relevance to Ms McAuley was the intention to reduce the number of Faculty Manager posts from five to three. Included in the consultation documents were job descriptions for the roles that would be available in the merged structure. Enhanced Voluntary Redundancy

[27]In an effort to minimise compulsory redundancies the University operated a voluntary redundancy scheme. Ms McAuley applied for voluntary redundancy on 26th March 2020, pB167-169. Her application was approved, see letter of 4th May 2020, pB175-176.

[28]By the 13th May 2020, however, Ms McAuley decided not to continue with the voluntary redundancy option, because she had decided she wished to return to work and would be well enough to do so. Overall redundancy process

[29]Broadly, the University approached the redundancy process by considering everyone within the Faculty of Arts and Humanities and the Faculty of Education as at risk for redundancy. They had drawn up (and consulted upon) a proposed structure for the merged Faculty, which included specific roles and job descriptions which would exist in the new structure.

[30]The University then engaged in a matching / slotting process, whereby individuals and their existing roles were compared with the roles in the new structure.

[31]If the roles were sufficiently similar the roles would regarded as ‘matched’. The criterion for matching are laid down in the University’s ‘Restructuring and Redundancy Policy and Procedure’ as a ‘75% or greater alignment’ in the requirements of the post, including the grade of the post and the essential elements of the person specification.

[32]If a role was ‘matched’ by an existing post holder that post holder could be appointed to that role without a further selection process. If, however, a number of existing staff matched with the same role there would be a selection process to decide between them. That selection, however, would be ‘ring-fenced’ to those who matched with the position; nobody outside that group would be considered.

[33]In practice, in relation to the managerial staff effected by the merger, the University did not identify any matched roles.

[34]They did, however, operate a secondary ring-fencing process, whereby specific roles were identified as sufficiently similar to the new roles that it was reasonable to restrict selection to those existing employees.

[35]If following the process of matching and ringfenced selection, posts remained open, the University would then carry out on open selection process to fill them. Impact on Ms McAuley

[36]Ms McAuley’s post of Faculty Manager (Business Operations and Quality) was, like the other Faculty Manager posts, placed at risk of redundancy.

[37]The other Faculty Managers at that time were:a. Jacqui Ellis, who held a permanent role as Faculty Manager (Administration) in the Faculty of Education. Between February 2020 and July 2020 she was appointed to a temporary role of Senior Faculty Manager.

b. Amanda Lavocat, who was Faculty Manager Administration in the Faculty of Education.

c. Elizabeth Lampert, who held a permanent role as Faculty Manager (Administration and Operations) in the Faculty of Art and Humanities. At the time of the redundancy exercise she was appointed to a temporary role dealing with the an ongoing project (Modernising Our Student Information)

d. Jamie Marchettii who was temporarily appointed as Faculty Manager (Administration and Operations) in the Faculty of Arts and Humanities, covering Ms Lampert’s role during her secondment.

e. Hazel Solly who was Faculty Manager (Quality) in the Faculty of Arts and Humanities

[38]On the 29th May 2020 a Matching and Slotting panel met to consider whether there were matching posts to various managerial positions, including the Faculty Manager posts. The panel was made up of Rama Thirunmachandran (Vice Chancellor) and Margaret Ayers (Director of Human Resources and Organisational Development) as well as Dr Turner and Mr Wright.

[39]The panel approached the matching by comparing the existing job descriptions in the two faculties to the proposed roles in the merged structure. Job descriptions and person specifications for the new roles had been drawn up for this purpose. Copies in job description and person specification for the Faculty Manager (Operations) and the Faculty Manager (Quality) were provided to the Tribunal, pB102-B117.

[40]Notes of the meeting were also produced, pD2-4. The Tribunal accepted that these were an accurate account of the meeting.

[41]The panel concluded that there was no match between the existing Faculty Manager posts and those in the new structure.

[42]They did, however, identify a number of posts where the existing Faculty Managers should be ringfenced to apply for the new roles.

[43]In relation to Mr McAuley the post identified was Faculty Manager Operations: which was ringfenced to Ms McAuley, Jamie Marchetti and Elizabeth Lampert.

[44]Over the course of the hearing there was significant criticism of the decision to include Mr Marchetti in this ring fence group. This was because he held the role as a temporary appointment rather than as a permanent role. Ms McAuley’s evidence was that in the previous restructurings that she had gone through the University had applied a policy that someone holding a temporary position would only be included in a ring fence if they had held that position for at least two years. The Tribunal accepted that this had been the approach taken in the past.

[45]In cross examination it was suggested to Dr Turner that Mr Marchetti was included in the ring fence because he was the University’s preferred candidate who had been earmarked for the role. She denied this and said that the panel took the view that his 18-month period in the role meant that he merited inclusion.

[46]The Tribunal accepted Dr Turner’s evidence that the primary reason Mr Marchetti was included in the ring fence was his significant period in the temporary role. He was not placed there because, at that stage, he was the preferred candidate. The panel would have been aware in broad terms of his performance in the role and that was relevant to the extent that if he had been performing poorly he would probably have been excluded. That is not the same, however, as Mr Marchetti being a preferred candidate or the outcome having been predetermined.

[47]The panel also considered the post of Faculty Manager Quality. This was initially ringfenced to Hazel Solly alone. This meant that Ms Solly would have needed to successfully apply for the role, but was not at that stage in competition with anyone else for it. In the event, Ms Solly chose not to apply. Sick leave

[48]In early March 2020 Ms McAuley had a mental health breakdown. She went home sick on 5th March 2020 and was certified as unfit to work by her GP.

[49]Ms McAuley’s ill health let her to consider ill health retirement. She emailed Mr. Wright regarding this on 12th of March 2020, B139-140.

[50]On 25th March 2020 Ms McAuley was referred to Occupational Health, B29. She met with an occupational health nurse on 2nd April 2020 who produced a report, B31-32. In summary the report recorded Ms McAuley's history of depression and anxiety and concluded that she was temporarily unfit to work due to an exacerbation of these symptoms. Ms McAuley was referred on to the occupational health psychiatrist. The report also noted the nurse’s view that Ms McAuley’s condition would be considered a disability under the Equality Act 2010.

[51]Ms McAuley met with the occupational health psychiatrist on 28th of April 2020. He also produced a report, B33-34. The psychiatrist agreed that Ms McAuley was temporarily unfit for her role, due to ‘moderate to severe recurrent depression’. He also agreed that Ms McAuley’s condition would amount to a disability.

[52]The psychiatrist also made a number of recommendations. For the purposes of this claim it is particularly significant that he commented on Ms McAuley’s ability to participate in any selection process, indicating: In addition to being temporarily unfit for work, this includes not being fit for a job interview. Her current mental state makes her unable to realistically represent her own professional abilities and it is possible that she has struggled to convey these for quite some time.

[53]With regard to Ms McAuley’s prognosis the psychiatrist noted that she had a long history of depression, including relapses, but this included periods of recovery. He stated that she had a good chance of recovery, noting in particular that she had not previously received secondary care or seen a psychiatrist. With such treatment, he suggested, ‘there is still a reasonable expectation of a full recovery’. He went on to indicate ‘I don't think I should see her before another two or three months, as severe depression naturally does take time to respond to treatment’.

[54]The psychiatrist was asked two follow up questions by the University 22nd June 2020 and he replied the same day, pB38. First, he was asked whether he could comment on the likely time frame for Ms McAuley to return to work. He replied that ‘I expect her to improve within the next six months, with a phased return to work within that time frame’.

[55]Second, he was asked whether he could advise on the likelihood of an ill health retirement under the local government pension scheme. He replied that since there was ‘still a good chance of recovery' Ms McAuley was ineligible for ill health retirement. Application for Faculty Manager Operation post

[56]Ms McAuley spoke to Mr Wright on Friday 26th June 2020. Part of their conversation related to the possibility of applying her applying for the Faculty Manager Operations role, which had been ringfenced to her, Mr Marchetti and Ms Lampert.

[57]The following Monday, Mr Wright wrote an email to Ms McAuley, summarising their discussion, pB294.

[58]They agreed that Ms McAuley was interested in applying for the role, but in light of her ill health was not able to make a written application or to attend an interview.

[59]Mr. Wright therefore agreed that she would be considered for the post without a formal application. The panel would also consider references in support of her application provided by named colleagues. In his e-mail sent at 10.56am Mr. Wright requested that these colleagues be named by 2.30pm. He suggested that either himself or Ms McAuley could contact those individuals.

[60]Ms McAuley replied at 11.46am, pB295-297. She indicated that she was not well enough to contact anyone and asked Mr Wright to contact Claire Alfrey on her behalf. She named two further colleagues who might provide a further reference if needed. She also suggested that the panel could consider the written application she had previously made for the Faculty Manager Business Operations post in June 2018.

[61]Mr Wright replied at 2.30pm. He indicated that the university had not been able to locate the June 2018 application but had a copy of the application Ms McAuley had made for the Faculty Director of Operations post in 2019. Selection for the Faculty Manager, Operations post

[62]Ms McAuley was considered for the Faculty Manager, Operations post. She was unsuccessful. Mr Marchetti was appointed to the role.

[63]The selection panel for the Operations comprised Dr Turner, Giles Polglaise (who was at that stage acting as Faculty Director Operations) and Helen Hogg (a HR advisor). Ms Hogg role was to provide HR advice and support. She did not form part of the decision making panel.

[64]On the 29th June 2020, Mr Wright sent an email to the panel, confirming that Ms McAuley was not able to attend an interview and setting out what he had agreed with her, pB-310.

[65]The panel post met remotely on the 30th June 2020. They considered the three candidates who had been ring-fenced for the role: Ms McAuley, Jamie Marchetti and Elizabeth Lampert.

[66]In relation to Mr Marchetti and Ms Lambert assessment was conducted in a traditional interview form, by video. The two candidates were asked prepared questions by reference to the job description and person specification. They received a score / grade based on their answers. Although the documents relating to this exercise were not disclosed, Dr Turner confirmed that there had been similar questions / score sheets as prepared as part of the earlier selection process for the Senior Faculty Manager post, B71-73.

[67]It has it is at this stage necessary to deal with the lack of documentary material available to the Tribunal in relation to the selection decision. As noted above, the detailed assessment documents in relation to the candidates were not disclosed. Dr Turner agreed that there would have been prepared questions for the candidates. There would have been scoring sheets, on which each member of the panel would have made notes during the interviews and written their scores. She said that there would also have been a summary of the discussion between the panel, probably written on one of the scoring sheets.

[68]None of this documentary evidence has been provided. Both Dr Turner and Mr Wright’s evidence was that searches have been undertaken for these records and that all relevant documentary evidence has been disclosed. Neither has been able to provide a detailed explanation about what has happened to the missing documents. In general, both note that the University was conducting a large restructuring exercise under the extremely difficult circumstances of the Covid pandemic and lockdown. This meant that the process was being conducted in unusual or new ways. Discussions that would normally take place in person were being conducted online. All of this, they suggest, may have led to documents not being retained in the way one would normally expect.

[69]Despite the difficult circumstances, the Tribunal was surprised by the extent to which key documents could not be found. The University is a large employer, with extensive relevant experience and access to HR expertise. It should have been obvious to those dealing with the redundancy processes, including Dr Turner and Mr Wright, that it was important that the process was properly documented. For that matter, such understanding is apparent in much of the earlier disclosure, in which the process of formal consultation is recorded.

[70]Both Dr Turner and Mr Wright must also have been aware that the University might face legal challenges in relation to its decisions. The Tribunal would have expected Ms Hogg, in her role of providing HR advice to the panel, to have a similar awareness. To some extent that must have been in her mind, since she produced a note of the decision in relation to Ms McAuley. All three should have sought to ensure that the decisions were properly documented and relevant documents safely retained. It is surprising they did not.

[71]The Tribunal gave careful consideration to whether we should draw any adverse inference from this lack of documentation in respect to our findings of fact. We concluded that we should not. The Tribunal bore in mind that the purpose of drawing such inferences is to arrive at accurate factual conclusions. The drawing of inferences is not a mechanism to punish a party for failing to meet the Tribunal’s view of good practice. We accepted the evidence of Dr Turner and Mr Wright that the University had searched for relevant documents and disclosed what it had found. We did not find that there had been any deliberate attempt to destroy or supress relevant evidence. What had been disclosed did not suggest that evidence had been cherry picked to slant it in favour of the respondent. In those circumstances it would be wrong to draw any adverse inference.

[72]The lack of documentation, however, did create difficulty in considering how Ms McAuley’s application for the role was considered. The most relevant document is notes of the panel discussion written by Ms Hogg. These read: Previous interview process for a higher level set of responsibilities, interviewed Jamie, Jacqui and Shelley – Shelley was not appointable, was well at the time but did not interview well, not confident. Not agile. Has done parts of her role very well, but has become unwell when asked to focus on specific elements of the role, sometimes tries to take on too much – wants to fix everything, overloads herself. Doesn’t reach out for support and building networks. Concerns about ability to develop her in order to create a high performing team. Would want to support AA areas as well, currently need someone strong and focused on Operations. Emotional intelligence to sift through to understand what needs doing – key to this role, particularly over the next 12 months. Application – does have a record of leading in changing environments, but is not there currently. Does have experience, but not the personal qualities required. On the evidence that we have, Shelley would not be appointable to the role. Q’s for Claire – Emotional intelligence, leadership (ability to be transformative vs transactional), self-reflection / self-awareness.

[73]There reference to ‘Q’s for Claire’ strongly suggests that the note was produced before Claire Alfrey was contacted, which was following the selection meeting on the 30th.

[74]In her witness statement Dr Turner said that these notes fairly reflected the panel discussion.

[75]In her oral evidence and under cross-examination, however, Dr Turner gave a significantly different account. She said that the panel had sought to score Ms McAuley in a similar way to the other candidates. Since Ms McAuley did not attend the interview they did so on the basis of the information that they had. At this stage, this was very limited since Claire Alfrey had not yet been contacted to provide a reference. They only information that was available, therefore, was the previous application for the Faculty Manager Business Operations post, pB-311-320, and the personal knowledge that the panel had about Ms McAuley.

[76]The later was not extensive or current. Mr Polglaise had not worked with Ms McAuley for several years. Dr Turner had not worked directly with her, although she had line managed Xanthia Ash when Xanthia Ash line managed Ms McAuley.

[77]Dr Turner’s account of this process was not a detailed or specific one. She said that the panel would have scored the candidates individuals, including Ms McAuley, individually and then discussed them. She was initially unsure whether that occurred on the 30th June or the 1st July. She was not able to explain in any detail how the scoring was done, beyond very generalised statements that they had compared the application and their knowledge of Ms McAuley to the job description / person specification.

[78]The Tribunal concluded that, at the very least a preliminary decision about Ms McAuley’s suitability must have been reached on the 30th. That is what is recorded in Ms Hogg’s note, which is a contemporaneous document. That assessment is that Ms McAuley was not appointable.

[79]The Tribunal did not accept, however, that this was the result of the sort of scoring exercise that Dr Turner described. Ms Hogg’s note does not refer to such a scoring exercise. Instead it records a much more general assessment of Ms McAuley’s capabilities, focusing primarily on her state of health. The reference to her previous application for the more senior Director role is framed by reference to her health (‘was well at the time’). It suggests that, in her current role, she has ‘become unwell’ and ‘overloads herself’. It refers to her previous record of leading change but suggests that she is ‘not there currently’. It describes her as not having the ‘personal qualities required’. A fair reading of the note, in context, is that these are references to Ms McAuley’s mental health at the time meaning that she was not fit to take up the role.

[80]The Tribunal also concluded that the exercise described by Dr Turner would have been an exceptionally difficult one. The task of assessing one candidate on paper, and comparing them to other candidates who attended an interview – and do so fairly to all three candidates – would be challenging exercise under any circumstance. To do so when the paper application was several years old and for a different (albeit similar) role would significantly exacerbate that difficulty.

[81]We concluded that, if a detailed exercise of that kind had been conducted it would have been likely a) that Dr Turner would have had a more detailed recollection of it, and b) at least some of that exercise would have been reflected in Ms Hoggs note.

[82]The Tribunal also considered that, other than her state of health, there was no information that would suggest that Ms McAuley was not appointable to the role. She had held similar roles at at the same level within the University. There was nothing in her application for the previous role in 2018 that would apparently disqualify her. In her evidence, Dr Turner did not identify any specific element of the application that meant that Ms McAuley was unappointable. The most plausible basis, therefore, for that conclusion was an assessment of Ms McAuley’s health.

[83]In cross-examination, it was suggested to Dr Turner that Ms McAuley’s sickness absence was a factor in the decision not to select her. Her evidence was that it was not. The Tribunal did not, however, accept this evidence and concluded that the selection panel reached the conclusion that Ms McAuley should not be appointed because of her ill-health.

[84]It follows from this that, to a significant degree, the Tribunal rejected Dr Turner’s account of the selection process and the decision taken.

[85]Following the selection meeting Ms Hogg emailed Claire Alfrey, requesting her views on Ms McAuley’s capabilities, pB323-324. The email also refers to a conversation between Ms Alfrey and Mr Wright that took place the same afternoon. The email was sent at 15.08.

[86]The email is short and simply asks Ms Alfrey to comment on the three areas identified in Ms Hogg’s note: ‘Emotional intelligence, leadership (ability to be transformative vs transactional), self-reflection / self-awareness.’

[87]Ms Alfrey sent two separate emails the following day. Only the second email has been disclosed, pB321-323. Little turns on this, since what Ms Alfrey was to send one email at shortly before 2pm, which was a work in progress. Then she sent a second email at 4.05pm, which was a completed version. The additional material was in a different colour, so it is clear what had been added. The timing of the first email is apparent from an initial paragraph in which she says she is sending what she has written so far, before her next meeting begins at 2pm.

[88]In relation to the three areas that she was asked to discuss Ms Alfrey’s reference is a glowing one. She describes Ms McAuley as demonstrating ‘strong emotional intelligence’, who ‘got the best out of people by utilising their strength, but equally holding hard conversations when necessary’. She is described as ‘the ultimate professional at all times’ who handled difficult and contentious areas with ‘great tact and diplomacy’. Ms Alfrey says that ‘transformative leadership is really at the heart of what she does’ and describes Ms McAuley as ‘an equal and a key member of the management team’.

[89]It is difficult to determine the extent to which Ms Alfrey’s emails were seen or considered by the panel prior to making their decision. Ms Hogg’s note strongly suggests that the preliminary decision that Ms McAuley was not appointable was made before Ms Alfrey was asked to comment.

[90]The emails were sent, in the first instance, to Ms Hogg, who would have needed to send them to the panel. An email from Dr Turner to Mr Wright at 4.55pm refers to an earlier communication of the decision. The decision must, therefore, have been taken at least some time before that, allowing time for it to be communicated by Dr Turner to Mr Wright.

[91]It seems, therefore, highly implausible, that the full panel would have had time to consider, even relatively briefly, Ms Alfrey’s second and more complete email – much less discuss it as a panel.

[92]Although there would have been time for the panel to receive, read and discuss the earlier email before reaching a decision, the Tribunal concluded that they did not do so. The timing to do so would have been tight. In her evidence, Dr Turner said that she did not recall such a discussion, although she was confident she had read Ms Alfrey’s email. There is no record of the discussion (although given the poor state of document retention around this decision the Tribunal did not put more than minimal weight on this factor).

[93]The Tribunal concluded that the panel had, for practical purposes, reached their decision on the 30th, as recorded by Ms Hogg. They had then sought Ms Alfrey’s comments, because Mr Wright had agreed with Ms McAuley to do so. It is possible that they received some cursory attention from Dr Turner and the panel (although the evidence did not establish that they were received by Mr Polglaise). The panel did not, however, substantively revisit their earlier decision that Ms McAuley was not appointable.

[94]Ms McAuley was then informed of the outcome of the selection process through her husband by Mr Wright.

[95]On the 2nd July 2020,Dr Turner emailed Mr Wright setting out feedback to be provided to Ms McAuley, in relation to the selection decision, pB328. That feedback is brief and does not far beyond saying that another candidate was considered more suitable. Notably, it does not suggest that the panel concluded that Ms McAuley was not appointable in the role and does not suggest that the decision was related to concerns about her state of health.

[96]Dr Turner later produced somewhat longer feedback for Ms McAuley, pB332. This was not sent to her until the 24th July 2020, after the selection process for the Faculty Manager, Quality role had finished. Feedback regarding both roles was sent at the same time. That feedback essentially reiterates the previous information, at somewhat greater length. It indicates that ‘another candiate presented better’ and refers to their clear vision for the role of Professional Services, firm / strong example and insight into learning from Covid-19. Again, there is nothing in this feedback to suggest that the panel had considered Ms McAuley’s health. Selection for the Faculty Manager of Quality

[97]Although the post of Faculty Manager, Quality had initially been ring-fenced to a single employee, Hazel Solly, Ms Solly had chosen not to apply for it.

[98]It was therefore decided that it would be ringfenced to the two unsuccessful candidates for the Faculty Manager, Operations role: Ms McAuley and Ms Lambert. Both applied for the position.

[99]The selection panel met on the 16th July 2020 by video. The panel was Dr Turner, Giles Polglaise and Richard Brown (Faculty Director of Quality). Ms Lambert was interviewed and Ms McAuley’s application was considered on paper. Ms Lambert was appointed to the role.

[100]As with the Faculty Manager, Operations role, very limited documentary evidence has been disclosed in relation to the selection. There are no scoring sheets and no record of the discussion. There is also no equivalent note to that produced by Ms Hogg in the earlier exercise.

[101]Dr Turner’s account was that selection panel had carried out a similar process to that in the earlier role.

[102]Feedback on the selection was provided on the 24th July 2020. It was put to Dr Turner that this was, in essence, ‘cut and pasted’ from the feedback provided at the same time in relation to the Operations role, which she denied. It is apparent, however, that much of the material has been copied. The first three paragraphs are identical – including a reference to Ms McAuley’s application for the Operations role, when the feedback is intended to relate to the Faculty Manager, Quality process. The fourth paragraph is identical, save that references to Operations have been updated to Quality.

[103]The substantive differences between the two documents are in the numbered bullet points, which seek to explain why another candidate was preferred. In relation to the Quality role, these were that the other candidate had: provided good knowledge of the range of Quality processes that would come together in the new Faculty, demonstrated a strong aptitude for data analysis and had current relevant experience in process mapping and systems simplification.

[104]There is nothing wrong or improper in copying material from one document to another, where that information is common between the two documents. In this case, the main significance of this approach is that it tends to confirm that, at least in Dr Turner’s view, a similar approach had been taken.

[105]The Tribunal had, to a significant degree, found Dr Turner’s in relation to the previous selection process unreliable. In those circumstances, and given the lack of corroborative evidence, the Tribunal treated her evidence in relation to this process with caution. Ultimately, the Tribunal found that it also could not be relied upon. It was inherently implausible that having approached the selection for the Operations role in one way Dr Turner and Mr Polglaise had then taken a very different approach to a very similar exercise only a short time later. It was more likely that, having concluded that Ms McAuley’s ill health made her unappointable to one Faculty Manager role, they believed that she was also unappointable to the second, similar role. Dismissal

[106]Once Ms McAuley was unsuccessful in her applications for the Faculty Manager roles Dr Turner made the decision to dismiss her. She was sent a letter of dismissal on 24th August 2020, pB339-341.

[107]Given the structure of the redundancy process, this was the inevitable consequence of the earlier decisions. The law: unfair dismissal

[108]The general approach to determining whether a dismissal is fair is set out in s98 Employment Rights Act 1996. s98(1) requires the employer to establish the reason for the dismissal and that it is one of the potentially fair reasons set out in s98(2). In this case the reason relied upon is redundancy. The reason for dismissal is the factor or factors operating on the mind of the person who made the decision to dismiss.

[109]Redundancy is defined by s139 ERA. In summary an employee is dismissed by reason of redundancy if the dismissal is because a) the employer ceases to carry out the business for the purposes of which the employee was employed (either at all or in the place where the employee was employed) or b) the requirements of the business for employees to carry out work of a particular kind (either at all or in the place where the employee was employed) ceases or diminishes or is expect to do so.

[110]If an employer succeeds in showing that the reason for the dismissal is potentially fair, the Tribunal must consider whether the dismissal was fair. S98(4) requires that, in doing so, it consider whether in all the circumstances (including the size and administrative resources of the employer) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissal. The fairness of the dismissal must also be determined in accordance with the equity and substantial merits of the case. Neither the employer nor the employee bears the burden of proof on the question of fairness, which is to be approached neutrally.

[111]A fundamental element of considering fairness properly, in the context of a claim for unfair dismissal, is that a tribunal must not substitute its own view for that of the employer. Instead, the Tribunal’s role is to consider the employer’s actions and decide whether they were within the range of possible options open to a reasonable employer in the circumstances. This is often known as the ‘range of reasonable responses’. See in particular BHS Ltd v Burchell

[1980] ICR 303

and Iceland Frozen Food v Jones

[1983] ICR 17

[112]This means that the tribunal must not ‘stand in the shoes’ of the employer and decide whether they would have reached the same decision. That would, inherently, involve the Tribunal replacing the employer’s decision with their own. The Tribunal must focus on assessing the employer’s decision, by reference to the range of reasonable responses. At the same time, that range is not infinitely wide and a finding that dismissal fell outside the range should not inevitably suggest that a Tribunal has substituted its own view for that of the employer, see Newbound v Thames Water Utilities Ltd

[2015] IRLR 734

[113]In the context of a redundancy dismissal the fairness of the decision to dismissal should be approached by reference to the guidance given by the Employment Appeal Tribunal in Williams v Compair Maxam Ltd

[1982] IRLR 83

. A fair redundancy requires:a. A fair process of warning / consultation with affected employees and any recognised Trade Union.

b. A fair process of selecting employees to be made redundant.

c. A fair process of seeking to find any employee at risk of redundancy alternative employment.

[114]To determine whether the process of selection is fair it is necessary to consider both the identification of the pool (i.e. how the group of employees who are at risk of dismissal is determined) and how employees are selected from that pool.

[115]This approach was confirmed by the House of Lords in Polkey v AE Dayton Services Ltd

[1987] ICR 142

, in which Lord Bridge indicated: … in the case of redundancy, the employer will normally not act reasonably unless he warns and consults any employees affected or their representatives, adopts a fair decision which to select for redundancy and takes such steps as may be reasonable to minimise a redundancy by redeployment within his own organisation'.

[116]The guidance in Williams and Polkey, however, is not a series of statutory tests to be applied mechanistically, but questions to assist a Tribunal in applying the test in s98(4) ERA.

[117]This is particularly important where, as in this case, an employer approaches a redundancy situation by identifying all employees doing work of a particular kind as redundant and then seeking to select, from that group, those to be appointed to the newly available posts. As noted by the Employment Appeal Tribunal in Morgan v Welsh Rugby Union

[2011] IRLR 376

this kind of approach can create a situation in which the approach laid down in Williams is difficult to apply or wholly inappropriate. In such cases, HHJ Richardson indicated: To our mind a tribunal …. must apply s.98(4) of the 1996 Act. No further proposition of law is required. A tribunal is entitled to consider, as part of its deliberations, how far an interview process was objective; but it should keep carefully in mind that an employer's assessment of which candidate will best perform in a new role is likely to involve a substantial element of judgment. A tribunal is entitled to take into account how far the employer established and followed through procedures when making an appointment, and whether they were fair. A tribunal is entitled, and no doubt will, consider as part of its deliberations whether an appointment was made capriciously, or out of favouritism or on personal grounds. If it concludes that an appointment was made in that way, it is entitled to reflect that conclusion in its finding under s.98(4).

[118]This approach was confirmed by then HHJ Eady QC in Green v London Borough of Barking & Dagenham

UKEAT/0157/16

, who noted: At all times, the touchstone would need to be s 98(4); the ET would keep in mind the need not to fall into the error of substitution, but it would still need to review the decisions made and the process followed and determine whether each stage fell within the range of reasonable responses. The law: disability

[119]s15 Equality Act 2015 defines discrimination arising from disability. This occurs if a person treats someone unfavourably because of something arising in consequence of that person’s disability.

[120]This requires a Tribunal dealing with a s15 complaint to consider:a. Whether the claimant has been treated unfavourably;

b. The reason for that treatment;

c. Whether the reason is something arising in consequence of the employee’s disability;

d. Whether the employer knew, or could reasonably have been expected to know about the disability; and

e. Whether the treatment can be justified by the employer (i.e. whether the employer can show that it was a proportionate means of achieving a legitimate aim).

[121]Whether something arises in consequence of a disability must be considered on an objective basis. This means that the mental process of the respondent is not relevant, see Pnaiser v NHS England

[2016] IRLR 170

. Something may arise ‘in consequence of a disability’ through a series of links in a chain of consequences, see Sheikoleslami v University of Edinburgh

UKEAT/0014/17

[122]The reason for the treatment, however, requires consideration of the reason in the mind of the person who allegedly discriminated. The reason does not, however, have to be the sole or main reason. It also does not have to be the conscious motive of the individual concerns, it may be a subconscious or unconscious reason.

[123]Discrimination arising from disability can only occur if an employer knew, or could reasonable have been expected to know about the disability. An employer does not, however, need to know that the ‘something’ arose in consequence of the disability.

[124]There is no discrimination arising from disability if the treatment by the employer is justified. To be justified the treatment must be a proportionate means of achieving a legitimate aim. In considering whether the means are proportionate the Tribunal must reach an objective determination of whether an employer’s actions are appropriate to the aim and necessary to achieve it. This requires balancing the discriminatory impact on the employee and the reasonable needs of the employer.

[125]The Tribunal bore in mind that, in considering whether unfavourable treatment is justified, it must focus on the substance of the outcome rather than the process. This means that the approach to justification in relation to discrimination differs from the approach to fairness in the context of unfair dismissal. Unfavourable treatment does not become unjustified because it is the result of an unfair process, although that process may be evidentially relevant to whether there were less discriminatory alternatives. See DWP v Boyers

[2022] IRLR 741

[126]In relation to all of this, the burden of proof is on the claimant initially to establish facts from which the tribunal could decide, in the absence of any other explanation, that the respondent discriminated. This requires more than a difference in treatment combined with a difference in protected characteristic, se Madarassy v Nomura International PLC

[2007] ICR 867

. There must be something further from which it could be concluded that the protected characteristic influenced the decision. If this is established it is for the respondent to show that they did not discriminate.

[127]If, however, a tribunal is able to make positive findings on the evidence it is not necessary to apply the burden of proof provisions mechanistically. In such a case a Tribunal may proceed directly to considering the reason for the treatment, see Hewage v Grampian Health Board

[2012] UKSC 37

. The law: reduction of awards

[128]Where a dismissal is found to be unfair, it is open to a Tribunal to reduce any compensatory award to reflect the possibility that the employee may still have been dismissed had the employer acted fairly. This is described as a Polkey reduction, following the case of Polkey v AE Dayton Serviced Ltd

[1988] ICR 142

[129]As in relation to unfair dismissal, the Tribunal must not substitute its own view for that of the employer, the key questions are a) Whether the employee could have been fairly dismissed? and b) Would the actual employer have done so? See Hill v Governing Body Great Tey Primary School

[2013] IRLR 274

[130]The assessment of a Polkey reduction is an inherently uncertain exercise since it inevitably involves an element of speculation. Although there are cases in which the evidence related to any potential reduction is so riddled with uncertainty that no sensible assessment can be made, this is unusual. Tribunals should only proceed on the basis that employment would have continued indefinitely where the evidence that it would not have done so can properly be ignored, see Software 2000 v Andrews

[2007] IRLR 568

[131]In cases of discrimination the compensation awarded must take account of the chance that a respondent might have caused similar loss lawfully if it had not done so in a discriminatory fashion. In cases where the alleged discrimination is a dismissal this may require a Pokey reduction, as in an unfair dismissal claim. See Abbey National plc v Chagger

[2009] IRLR 86

. Submissions

[132]Both Counsel provided written submissions, in addition to their oral arguments. Rather than set out these out in detail separately, this decision aims to address the particular points made in the context of the Tribunal’s findings of fact and conclusions. Conclusions – Unfair dismissal

[133]The Tribunal reached the following conclusions. They are set out by reference to the agreed list of issues. What was the reason or principal reason for the Claimant’s dismissal? Was it a potentially fair reason within the meaning of section 98(1)-(2) ERA?

[134]The principal reason for the Claimant’s dismissal was redundancy.

[135]By the stage of submissions it was agreed between the parties that the reason for dismissal was redundancy. In any event, the evidence established that Ms McAuley was dismissed because the University was seeking to reduce the number of employees carrying out the work of Faculty Managers.

[136]It follows from this that the dismissal was for a potentially fair reason. Was dismissal fair and reasonable in all the circumstances and was the sanction of dismissal within the range of reasonable responses open to a reasonable employer in the circumstances? Did the Respondent follow a fair procedure?

[137]In broad terms the approach taken by the University to the redundancy situations created by the merger of the two faculties was a reasonable one. The decision to regard all the affected managers as potentially at risk of redundancy and to proceed by then selecting them for the roles in the new structure was one open to a reasonable employer.

[138]The matching process carried out by the University was also fair.

[139]One argument made by Ms McAuley is that she should have been consulted in greater detail in relation to the matching process and decision. It is true that there was very little consultation on this point. More could have been done to seek information and views from the affected employees. Considering however the consultation as a whole this was not sufficiently serious to render the dismissal unfair.

[140]A key criticism made of the process of selection was the inclusion of Jamie Marchetti within the ring-fenced selection for the post of Faculty Manager Operations. Ms Callan argued that since Mr Marchetti held the post of Faculty Manager on a temporary basis and therefore retained a separate permanent post he was not at risk of redundancy. It was, she argued, unfair to include him within the pool.

[141]This argument is put forward on three grounds. First, that the University’s redundancy policy refers only to staff ‘at risk’ of redundancy. This point can be illustrated by the section of the policy dealing with ring fenced selection (similar wording occurs throughout the policy). It reads: Where the number of potentially suitable staff at risk of redundancy exceeds the number of new posts available, candidates will be required to submit ‘Expressions of Interest’ after which competitive ringfenced interviews will be arranged.

[142]Ms Callan suggests that this means employees who are not at risk of redundancy should not, under the policy, be included in the ring-fenced selection.

[143]Second, Ms Callan argued that it was an unfair approach, based on Ms McAuley’s evidence that, in previous restructuring exercises seconded employees were only included in a ring-fencing exercise if they had been in the temporary post for at least two years. Mr Marchetti had only been in his Faculty Manager role for 18 months.

[144]Third, Ms Callan argued, that it is inherently unfair for employees who are at risk of redundancy to be disadvantaged by the inclusion within a pool of those who are not at risk of redundancy.

[145]The Tribunal did not accept these arguments. Although the policy refers to staff ‘at risk’ this is a general reference to those affected by the redundancy process. The tribunal did not conclude that it was intended to bear the meaning suggested by Ms Callan. The tribunal accepted Ms McAuley’s evidence the previous exercises had operated on the basis that only temporary appointments with two years’ service in that post would be included in any ring fenced selection. That supports the University’s position that the policy had not previously been understood as meaning that only those holding a permanent role that was placed at risk should be considered during a ring-fenced selection process.

[146]The two-year rule that had been applied in the past did not form part of the formal policy and it did not preclude the University applying a different rule. An employer that applies a particular policy choice in relation to a redundancy on one occasion (or multiple occasions) is not thereby precluded from applying a different policy choice during a later redundancy process, provided the policy applied is fair.

[147]In relation to the general fairness of including the conduct staff in the pool for ring-fencing the Tribunal found that this fell within the range of options open to a reasonable employer. A different employer might, quite reasonably, have reached a different decision. But this did not make the University’s approach unfair. There will be many cases in which an employer will have the option between a narrowly defined pool or a more widely defined one. The choice will inevitably determine the likelihood that any individual employee will be dismissed. Some employees may benefit from a narrower pool (because they will then fall outside it). Some employees may benefit from a wider pool, which reduces the chance that they are selected.

[148]A choice that means an employee is more likely to be dismissed does not, without more, render the pool unfair. In this case Mr Marchetti had held the faculty manager role for 18 months. It was not unreasonable to regard him as a proper candidate for the role in the merged Faculty. The situation is closely analogous to that of a ‘bumping dismissal’ in which an employee, performing work for which their employer still requires the same number of employees, is dismissed so that their role can be taken by an employee who would otherwise be dismissed for redundancy. During a redundancy process an employer will need to make decisions about which employees are placed within a group for consideration, whether that is in the context of a traditional pool of those potentially redundant or, as here, a group ring-fenced for selection to a role. Such decisions, inevitably, involve advantaging some employees at the cost of disadvantaging others. This is not, in itself, unfair. Nor is an employer required to make decisions on the basis that it must seek to minimise the number of dismissals for redundancy. The fundamental question remains whether the employer approached the process in a way that was open to a reasonable employer. Applying that rule, Mr Marchetti’s inclusion within the ring-fencing was reasonable.

[149]The tribunal did conclude that the selection for the faculty manager operations role was unfair. Most fundamentally, although it was presented to Ms McAuley as a process assessing her skills and knowledge in relation to the post the decision was in fact based on her ill health.

[150]Considering Ms McAuley’s state of health was not inherently unfair. A reasonable employer might well have considered it important to take into account whether Ms McAuley was well enough to take on the role and, if not, when she was likely to be fit. These issues could be relevant to a redundancy selection exercise of the type the university was conducting.

[151]To consider these issues fairly however the university would have needed to be frank with Ms McAuley the nature of the decision they were making. They were not. At no stage was it suggested that the university believed or might believe that she could not be appointed to the role of Faculty Manager Operations. If this had been made clear Ms McAuley would have had the opportunity to respond to that possibility. She might have suggested, as she did in the course of this hearing, some form of staged return or temporary cover for that role. Whatever conclusions might have been reached in relation to this fairness required her to be given that opportunity.

[152]In addition for a fair decision of this nature to be made a respondent would need to fairly consider the available evidence this in particular would have required consideration of the occupational health reports that dealt with Ms McAuley’s prognosis. These were not considered by the selection panel.

[153]The failure to take into account that information was particularly significant in this case. The Occupational Health reports the most relevant and important information on the question. In addition the information available to the panel, that Ms McAuley was not well enough to attend an interview and was pursuing ill health retirement was likely to give a far more pessimistic impression then that given by the Occupational Health reports.

[154]It was also unfair, having agreed to obtain and consider information from Claire Alfrey, to reach to reach a conclusion before seeking that information and therefore without considering it.

[155]In relation to the selection for the Faculty Manager Quality, the Tribunal found that the decision not to appoint Ms McAuley was unfair for the same reasons. This selection was similarly made on a different basis than the one that was suggested to Ms McAuley and again failed to take proper account of the medical evidence that the Respondent had in its possession.

[156]Stepping back to consider the situation as a whole, the University’s fundamental error was that it, possibly inadvertently or unconsciously, merged its redundancy selection process with consideration of Ms McAuley’s capability for work on grounds of ill health. If it had been carrying out an explicit capability process, it seems likely that both Dr Turner and Mr Wright would have recognised that fairness required that Ms McAuley be informed about the nature of the process and that the relevant decision makers fully consider all the relevant evidence, including medical evidence. When, however, similar issues arose in the context of the redundancy selection process, they appear to have lost sight of this.

[157]The Tribunal recognised that the University staff, including Dr Turner and Mr Wright, were dealing with a challenging process in difficult circumstances. None of the staff involved had any personal animosity against Ms McAuley. Nonetheless, the University’s actions fell outside the range of reasonable responses.

[158]For completeness, the Tribunal did not accept a number of the arguments relied upon by the Claimant in relation to the fairness of the dismissal.a. Prejudgment of the redundancy process: The Tribunal concluded that there had not been any prejudgment of the outcome of the disciplinary process or deliberate manipulation of it to achieve a particular result.

b. Communication during the consultation process: There were occasions on which communication with the claimant about the redundancy process was delayed because she was on sick leave and not always accessing her work emails. Overall, however, as she accepted in her evidence, she was kept properly informed of the process and had an opportunity to participate in the consultation.

c. It was suggested that the University should have assessed Ms McAuley either by sending her more specific written questions in relation to the roles or by interviewing Ms Alfrey. In circumstances in which Ms McAuley had indicated that she was not well enough to participate in the selection process, including by making a written application, the Tribunal did not find that it was unfair to take the limited approach that it did. Some form of interview with Ms Alfrey would have been possible, but it was not something that fairness required the University to do. Conclusions – Disability Did the Respondent treat the Claimant unfavourably?

[159]The University accepted that, in dismissing Ms McAuley, they treated her unfavourably. If yes, was that treatment because of something arising in consequence of the Claimant’s disability?

[160]As set out above, the Tribunal concluded that Ms McAuley was dismissed because of the University’s view of her mental health and it’s impact her ability to carry out the Faculty Manager roles she had applied for.

[161]The Tribunal found that those views arose in consequence of Ms McAuley’s disability. The relevant managers held those views because of Ms McAuley’s absence from work, her inability to attend the interviews and her application for ill health retirement – all of which arose because of her disability. If yes, can the Respondent show that the treatment was a proportionate means of achieving a legitimate aim.

[162]In the list of issues the Respondent’s legitimate aim was described as ‘to carry out a redundancy process in the interests of economy and efficiency, i.e. to address a diminishing requirement for the work undertaken by Faculty Managers as the result of the merger of the two faculties and to achieve the consequent costs savings’.

[163]This was elaborated upon over the course of the hearing and submissions. The final formulation of the proposed legitimate aim was to achieve an efficient merger of the two faculties, minimising the impact on both students and faculty.

[164]It is important to note that the Tribunal did not understand this to be an argument that dismissing Ms McAuley was a means of ensuring an efficient merger process in the sense of the redundancy selection process itself. Dismissal of a disabled employee in order to conduct an efficient redundancy process would not, save possibly in the most unusual circumstances, be justified. The Tribunal did not understand the University to be advancing such an argument.

[165]Rather, the University’s position was (if the earlier elements of the s15 claim were established) was that it was important for the merger itself to be completed in good time and the merged faculty to be properly in place in time for the new academic year. The Tribunal accepted that this was a legitimate aim.

[166]The Tribunal concluded that, in principle, dismissing an employee (whether directly as part of a capability process or, as in this case, through a redundancy selection process) could be a proportionate means of achieving that legitimate aim.

[167]Stepping back from the facts of this case, the fact that an employee is presently unable to carry out their duties at work and their employer cannot reasonably be expected to wait for them to be able to return, is routinely the basis on which an employee is dismissed. In principle, such a dismissal may be both fair and justified.

[168]The question for the Tribunal, however, is whether the University has established that Mr McAuley’s dismissal was so justified.

[169]The best evidence in relation to Ms McAuley’s prognosis and ability to return to work, was the Occupational Health Psychiatrist’s letter of 22nd June 2020, which indicated that she would be able to return to work, as part of a phased return, by December 2020, pB38.

[170]As set out above, the University’s process of redundancy selection did not include any consideration of when Ms McAuley would be able to return to work or what the impact of any delay in her taking up either Faculty Manager role would be on the University. The Tribunal, however, must take an objective approach to the question of justification. The University’s evidence to the Tribunal, however, also did not engage with this issue.

[171]The Tribunal had no significant evidence that would establish the impact of someone, such as Ms McAuley, being appointed who was not able to take up the role immediately.

[172]The highest the University’s case on this point could be put was that Ms McAuley accepted in her evidence that it was important to the University that the merger (and therefore the appointments) was resolved before the new term. The Tribunal accepted this evidence. If Ms McAuley was appointed to either role there would be some delay in her taking it up, because of her ill health. That would inevitably cause some level of difficulty to the University’s operations and that difficulty would be increased by the fact that she would be unlikely to have returned to work on a full-time basis by the time the new academic year began. So far as it goes, that is simply a matter of common sense.

[173]This, very general, conclusion, however, is not sufficient to establish that the dismissal was justified. When dealing with a disabled employee, it will very often be the case that avoiding discrimination and / or fulfilling the duty on an employer to make reasonable adjustments will involve some level of difficulty, inconvenience or cost. The purpose of the justification element of the legal test is to balance those negatives elements against the impact on the employee. It is not sufficient, in order to rely on the justification defence, to establish merely that there will be some such difficulties.

[174]The Tribunal therefore concluded that the evidence did not establish that Ms McAuley’s dismissal was a proportionate means of achieving a legitimate aim. Polkey Reduction

[175]Although the Tribunal concluded both that Ms McAuley had been unfairly dismissed and that the dismissal was an act of discrimination arising from disability, this does not mean that she would have inevitably been appointed to either Faculty Manger role.

[176]The Tribunal therefore sought to assess that chance that Ms McAuley would have been appointed to either role. This exercise was made difficult, because of the lack of any detailed information about the performance of the other candidates or how Ms McAuley would have been considered had the process been conducted in a fair and non-discriminatory manner.

[177]This was also not, however, a case where it was appropriate to abandon the exercise on the basis that no sensible conclusion could be reached. In the context of a competitive selection process it was plain that Ms McAuley might not have been successful. It would be wrong to approach compensation on any other basis.

[178]The Tribunal therefore concluded that compensation, in relation to both the unfair dismissal and discrimination, should be awarded on the basis that each candidate in the two selection processes had an equal chance of being appointed to the role. This is necessarily applying a very broad-brush assessment, but the Tribunal was unable, on the basis of the available evidence, to reach a more nuanced conclusion.

[179]This means that Ms McAuley’s compensation will be considered on the basis that she had a one in three chance of being appointed as Faculty Manger, Operations. Then, if she had been unsuccessful in that application, a one in two chance of being appointed as Faculty Manager, Quality.

[180]Both parties agreed that consideration of the appropriate compensation would need to take into account events following Ms McAuley’s dismissal and, in particular, Ms McAuley’s subsequent state of health. This is likely to include consideration of whether she might have been dismissed, on ill health grounds, at a later stage. The Tribunal has not heard evidence on those matters and therefore has not reached any conclusions at this stage.

[1]The claimant is entitled to compensation under s124 of the Equality Act 2010 of £32,684.38, calculated as follows:a. Financial loss: £3,799.43, including loss of earnings, loss of pension and loss of statutory rights.

b. Injury to feelings: £21,000

c. Interest of financial loss: £1,182.75

d. Interest on injury to feelings: £6,702.20

[2]As the Claimant has received a redundancy payment equal to her entitled to a basic award for unfair dismissal, no basic award is payable under s122 Employment Rights Act 1996.

[3]As the Claimant has been fully compensated for her losses under s124 Equality Act 2010, no compensatory award is payable under s123 Employment Rights Act 1996.

[1]This is a remedies judgment with reasons, following the Tribunal’s earlier decision on liability. It should be read together with the liability judgment and its accompanying reasons. Claims and issues

[2]At the liability stage the Employment Tribunal concluded that Ms McAuley had been unfairly dismissed and that the act of dismissal was also unfavourable treatment because of something arising in consequence of her disability.

[3]The context of the dismissal was an ongoing redundancy process within the University. At the liability stage the Tribunal concluded that compensation would be considered on the basis that Ms McAuley had a one in three chance of being appointed as Faculty Manger, Operations. Then, if she had been unsuccessful in that application, a one in two chance of being appointed as Faculty Manager, Quality.

[4]The key issues at this remedy stage were to determine Ms McAuley’s financial loss and to consider injury to feelings. Procedure, documents and evidence heard

[5]In addition to the evidence considered at the liability stage, the Tribunal heard further evidence on remedy from Ms McAuley and from Simon Wright (Human Resources Business Partner at the University).

[6]A bundle of documents of 202 pages was produced for the remedies hearing. References to page numbers are referenced to that bundle unless otherwise indicated.

[7]Both counsel made oral and written submissions. The Tribunal was grateful for their assistance. The points made in submissions are addressed as they arise in these reasons.

Findings of fact

[8]The Tribunal considered the oral evidence and the documentary evidence to which we were referred. All findings of fact are made on the civil standard of proof. That means that they were reached on the basis that they are more likely to be true than not.

[9]The written findings are not intended to address every point of evidence or resolve every factual dispute between the parties. The Tribunal has made the findings of fact necessary to resolve the legal disputes before us. Where we have not made findings or made findings in less detail that reflects the extent to which those areas were relevant to the issues and the conclusions reached.

[10]Ms McAuley began a period of sick leave on 28th February 2020. She was dismissed by letter on 24th August 2020; the effective date of termination was 30th November 2020. The parties agreed that compensation should be assessed on the basis that Ms McAuley was earning £512.70 net at the time of her dismissal.

[11]In assessing remedy, the Tribunal must consider a scenario in which Ms McAuley was not dismissed for redundancy but was appointed to one of the Faculty Manager roles for which she applied. The decisions about these roles were made in June and July, as set out in the liability decision.

[12]The key issue in respect of Ms McAuley’s financial loss is whether Ms McAuley would have been fit to return to work in order to take up one of these roles and when. And, further, to consider whether there would have been a fair dismissal on grounds of ill health before she was able to return. Fundamentally, these issues were determinative of what financial compensation would be awarded for loss of earnings and loss of pension.

[13]The Tribunal also had to consider the emotional impact of the dismissal on Ms McAuley, in order to consider an award for injury to feelings. Policies and procedures

[14]The University’s Sickness Absence Management Procedure was produced, p36-43. It sets out a conventional approach to sickness absence, consistent with what would be expected of an employer like the University. In particular it provides for a series of meetings that may culminate in a capability dismissal where an employer may not be able to return to work within a reasonable timeframe.

[15]Ms McAuley’s statement of main terms and particulars of employment was also produced, p44-51. In particular, this confirms that Ms McAuley was entitled to access to the Local Government Pension Scheme (LGPS) and would receive sick pay in accordance with the University’s sick pay policy. Given her length of service, Ms McAuley was entitled to sick pay on the basis of six months full pay and six months half pay, p52. This means that her paid sickness absence would have ended on 28th February 2020.

[16]Mr Wright gave evidence about how the University operated these policies in practice. The University treated absences of 28 days as cases of long-term illhealth. Such absence would trigger review by Occupational Health, if that had not already been arranged. The review would then inform the University’s approach and next steps. Broadly, there were four likely courses of action. First, to delay further steps pending further developments / further review. Second, to progress towards a return to work where the prognosis was suitable. Third, consider redeployment to another position. Fourth, to consider ill-health retirement, in conjunction with the LGPS pension scheme.

[17]The Tribunal accepted Mr Wright’s evidence that the University would generally regard the end of an employee’s paid sickness absence as bringing the issue of sickness absence to a head, if this had not already occurred. Ms McAuley agreed that, while it was not unknown for an employee to remain in employment after their paid absence period had expired, this was unusual.

[18]Evidence was produced about the outcome of mental health long-term absence cases within the University over the previous decade, p158-161. This showed the outcome of 42 cases where the employee left the university. Seven were dismissed, 23 resigned, 3 were retired on the basis of ill health and 9 entered settlement agreements. 195 employees who experienced long-term ill health on mental health grounds returned to work in some form. Local Government Pension Scheme

[19]Ms McAuley was a member of the Local Government Pension Scheme (LGPS) as part of her employment with the University.

[20]The LGPS is a defined benefit pension scheme. Members pay contributions in order to maintain their membership of the scheme. Each year 1/49th of their pensionable pay is credited to their pension account. At the end of the year the total amount in their pension account is adjusted in line with inflation. Employees within the LGPS are entitled to take their full pension at their normal retirement age, which in most cases equates to their State Pension age. There are permitted to take the pension earlier, but this will generally mean accepting a reduced annual pension.

[21]Like many such schemes the LGPS has provisions allowing for early retirement on the basis of ill health. These provisions are important because they allow an employee to retire earlier than their pension age, without the reductions to their pension that would normally result from this.

[22]In order to qualify for ill-health retirement, an employee must be permanently unable to do their current role until their state pension age and not immediately capable of undertaking gainful employment. In this context ‘gainful employment’ is defined as paid employment for at least 30 hours a week.

[23]The LGPS ill health retirement provisions operate in a series of three tiers, depending on the nature of the employee’s prognosis. Each tier has different consequences for the entitlement to pension:a. Tier One: Where an employee is unlikely to be capable of gainful employment before their state pension age.

b. Tier Two: Where an employee is unlikely to be capable of gainful employment within three years of leaving their current role, but is likely to be capable of gainful employment before their state pension age.

c. Tier Three: Where an employee is likely to be capable of gainful employment within three years of leaving their current role (or before their pension age if that is earlier).

[24]An employee in Tier One is eligible for the pension they have built up immediately, with no reduction for early payment. Their pension is also increased by the amount they would have built up from their leaving date to their normal pension age. That pension is paid for the rest of their life.

[25]An employee in Tier Two is eligible for the pension they have built up immediately, with no reduction for early payment. Their pension is also increased by 25% of the amount they would have built up from their leaving date to their normal pension age. That pension is paid for the rest of their life.

[26]An employee in Tier Three is eligible for the pension they have built up immediately, with no reduction for early payment. There is no further increase., That pension is paid until either a) the pension has been paid for three years; b) the employee starts gainful employment c) the employee becomes capable of gainful employment. Application for ill-health retirement

[27]On the 12th March 2020, shortly after the beginning of her sickness absence, Ms McAuley applied for ill-health retirement. During her cross-examination it was suggested to her that this must have meant that she felt, at that early stage, that she was too ill to return to work, either at that date or in the foreseeable future from that date.

[28]While the Tribunal agrees that terms of ill-health retirement under the LGPS require that an employee be permanently unable to carry out their current role, it found that only a very limited inference could be drawn from Ms McAuley’s application. At this point she was in a difficult situation. She was experiencing a significant episode of depression and was unable to work. She felt that she had been badly treated in the workplace. A redundancy process had just begun, which was likely to place her job at risk. In those circumstances, it was natural that she would wish to explore all available options. She would not have applied for ill-health retirement if she had not felt that she was potentially entitled to it because of her ill-health. But she was not approaching the question as a lawyer giving advice might, by careful reference to the precise criteria she would need to fulfil. Her application does not therefore imply that, at that stage, she had reached a considered view that she was unlikely to be able to return to work within the foreseeable future. Beyond confirming that Ms McAuley felt that she was not fit to return to work at that date and was experiencing significant mental health difficulties, it is not of material assistance in assessing the position or likely prognosis later in the year. Occupational Health evidence

[29]Ms McAuley was seen by occupational health a number of times in 2020.

[30]On 2nd April 2020 she was seen by an Occupational Health Advisor, Jenny Hillman, p55-56. Ms Hillman’s report confirmed that Ms McAuley had been on sick leave since 5th March 202, due to ‘an exacerbation of the symptoms of depression and anxiety’. Ms Hillman concluded that she was temporarily unfit for work. She referred her to an occupational health psychiatrist for further advice and support.

[31]Ms McAuley was then seen by Dr Zoettl, a Consultant Psychiatrist, on 28th April 2020, p57-58. He confirmed that she was temporarily unfit for work, by reason of moderate to severe recurrent depression.

[32]Dr Zoettl summarised Ms McAuley’s history of mental health difficulties up to that point. He noted that, up to this point, her longest absence from work had been ‘nearly a year’ around 2001. He emphasised, however, that while she had a history of relapses, there were also periods of recovery. He considered it was realistic to hope for another recovery and to ‘make it last this time’. He also found that it was significant that Ms McAuley had previously been treated with SSRIs, which he described as ‘the most basic group of antidepressants’ that were ‘perfectly fine in primary care’. She had not previously been treated in secondary care, where wider pharmacological options were available. He proposed increases to her existing medication, with the options of shifting drugs if this was not successful.

[33]Dr Zoettl concluded that it was ‘too early to suggest ill-health retirement’ since he was hopeful that Ms McAuley would be able to recover. He suggested that he should see her again in about two months.

[34]Ms McAuley had a further appointment with Dr Zoettl on 19th June 2020, p59- 61. He recorded that she had begun a course of cognitive behavioural therapy, although she was finding this too demanding and unhelpful. He also summarised her recent pharmaceutical treatment. He noted that this had not been entirely successful, since an increased dose of Mirtazapine had made her feel irritable and aggressive, as well as causing restless limbs. Dr Zoettl also recorded that Ms McAuley had entertained thoughts of suicide, but had reassured him that she would never act on these. Dr Zoettl described Ms McAuley as being in a severe episode of depression.

[35]Dr Zoettl concluded that Ms McAuley remained unfit for work, including for a job interview. He described her mental state as having worsened and her depression as having deepened. He noted, however, that she had been referred to the Community Mental Health Team, who were likely to accept her for treatment in July. She had also been prescribed Vortioxetine, which had been one of the secondary care drugs he had previously suggested might be suitable. Dr Zoettl’s view, therefore, was that it was only at this point that the first steps were being taken to secure the necessary treatment in secondary care. On this basis, he concluded that there remained a good chance of recovery.

[36]On 22nd June 2020 Dr Zoettl wrote to the University in response to questions raised on his previous letter, p67. He indicated that he expected Ms McAuley’s condition to improve within the next six months, with a phased return to work possible within this time. In response to a query about the likelihood of a successful application for ill health retirement, he responded that Ms McAuley was ineligible, because there was still a good chance of recovery.

[37]Dr Zoettl saw Ms McAuley again on the 15th September 2020, p 68-69. He recorded that, at this stage, she had been under the care of the Community Mental Health Team for a month and was being seen three times a week. Her prescriptions continued to be adjusted and she was also expecting to receive talking therapy. Dr Zoettl concluded that she remained in a severe episode of depression.

[38]At this stage Ms McAuley had been made redundant and Dr Zoettl concluded that she was likely to ‘process the redundancy as another negative experience’. He recorded that he feared it would have a negative impact on her mental health. Nonetheless, he found that, with the positive impact of the Community Mental Health Team it was not ‘beyond the bound of possibility’ that the episode of depression would start to lift before the end of the year. Reading between the lines, it seems that Dr Zoettl was somewhat more pessimistic about Ms McAuley’s prognosis at this stage than in June. His view had shifted from an expectation that she would be about to return to work by the end of the year, to one that significant improvement was possible by that point. Nonetheless he remained optimistic of her recovery.

[39]In relation to ill-health retirement, he recorded that he had reminded Ms McAuley that she could apply for her pension, but also that this would be more likely to be successful if the prognosis was negative, which he did not think it was. Dr Zoettl was not formally advising on the possibility of ill health retirement and deals with it briefly at this stage. Nonetheless, he appears to have reached a fairly firm view that it was not a realistic option at this stage. Given that Dr Zoettl was aware that Ms McAuley’s employment was coming to an end by reason of redundancy and that the University had previously considered ill health retirement, it is likely that, had he thought it was a realistic possibility, he would have encouraged her to pursue it. Events following dismissal

[40]Following her dismissal, Ms McAuley continued to struggle with her mental health. She describes being under the care of the Thanet Community Mental Health team from August 2020.

[41]A letter from Thanet CMHT records the care plan they had in place in February 2021, p111-112. It describes Ms McAuley has having a moderate depressive episode. It records Ms McAuley’s account of feeling low most of the time; sleeping only 4-5 hours at night with interrupted sleep and feeling tired during the day. She describes poor energy and motivation.

[42]Following her dismissal Ms McAuley sought other employment. In December 2020 Ms McAuley secured an interview for a role as a Personal Assistant, p101. At the interview she experienced what she described as a breakdown. Her unhappiness about her dismissal and the situation she was in became overwhelming and she was not able to answer the questions being posed effectively. She describes herself as being slow to respond and unable to remember examples of her work or to show any confidence. Following the interview she describes herself as relapsing, not being able to get up or maintain her personal care for a number of weeks.

[43]From 14th December 2020 Ms McAuley was in receipt of Employment and Support Allowance, p108.

[44]In March 2021 Ms McAuley was taken to Accident and Emergency with serotonin syndrome. As a result of this condition she had to reduce the number of anti-depressants she was taking.

[45]On 22nd April 2021 Ms McAuley was examined by a DWP Health Care Professional, for the purposes of assessing her capability for work. At that time she described her anxiety and depression as getting worse for several months, because of bullying at work. She described low mood, anxiety, tearfulness, a loss of interest and enjoyment, with a lack of motivation all the time. She also described suicidal thoughts in the past six months, but without any intention to act on them. She said that she was speaking to the Mental Health Team daily.

[46]In her description of an average day, Ms McAuley described poor sleep caused by feeling low and worry. She said that her husband had to encourage her to get out of bed. She was able to wash without prompting, but did not always change her cloths. She describes spending time in a quiet room, just staring, without the motivation to engage with household chores without support from her husband. She describes not being able to engage with online shopping and having to relying on her husband to do this. She said that she cannot go into a shop because she finds this overwhelming and so spends most of her time at home. She describes her husband having to do the cooking and, although she is encouraged to assist, struggling to do so. Overall, the report describes symptoms of serious depression.

[47]Following the assessment the DWP concluded that Ms McAuley had limited capability for work and limited capability for work related activity. This meant that the DWP did not require her to seek work or engage in activities to prepare her for work (such as CV workshops or training courses).

[48]Ms McAuley did not actively seek work after this point. In her evidence she said that she was not fit either seek work or to carry out a job during this time.

[49]Ms McAuley was assessed by an Occupational Physician on 9th June 2023 as part of a further application for ill health retirement, p138-140. This describes Ms McAuley as ‘struggling with high levels of anxiety, low mood, poor concentration, fatigue, poor motivation and poor sleep. She suffers from nightmares and when anxious suffers from chest pain’. She also described found that Ms McAuley’s memory had been affected, meaning that she was unable to read and could only watch television for a short period of time.

[50]The report also records that in the second half of 2020 Ms McAuley had begun to feel somewhat better, but had then worsened due to a number of stressors. These included both stress at work (this would have been around the time of her unsuccessful applications and the decision to make her redundant) and stress coping with her son who has attention deficit hyperactivity disorder. During cross-examination it was suggested to Ms McAuley that difficulties caring with her son contributed to her mental health worsening. Ms McAuley said that it was difficult to cope with a child with ADHD when you are not 100%, but that her son had always had ADHD.

[51]At the end of 2023 Ms McAuley was contacted by a previous college who was able to help her secure a part time role at a multi-academy trust. Ms McAuley said that she was able to cope with this role because it was significantly less responsible than her previous jobs (being a part-time executive assistant post, rather than a managerial position). She was also able to work flexibly when struggling with her mental health. The role is to cover for an employee on maternity leave and is expected to conclude in October 2024, although Ms McAuley said that she hopes to continue working if this is possible.

[52]The report concluded that Ms McAuley was, at this point, permanently incapable of discharging the duties of her former employment, by reason of ill health. As a result she was found eligible for an ill health retirement pension from August 2022. The law: compensation

[53]Remedies for discrimination are provided by s 124 Equality Act 2010. In particular, this allows for an order that the respondent pay compensation to the complainant on the same tortious basis as would be awarded by the civil courts.

[54]This means that compensation should seek to place the claimant in the financial position that they would have been, but for the act of discrimination. Unlike in cases of unfair dismissal there is no statutory cap on discrimination awards and the Employment Protection (Recoupment of Benefits) Regulations 1996 do not apply. Credit must, however, be given for benefits received if they would not have been received but for the discrimination, because failure to do so would result in a complainant being financially better off (as a result of receiving both compensation and benefits).

[55]Remedies for unfair dismissal are provided by sections 112 to 124A of the Employment Rights Act 1996. In summary these provide for a basic and compensatory award. This is case the parties are agreed that Ms McAuley has received a redundancy payment that means that she is not entitled to any basic award.

[56]In relation to the compensatory award, the Tribunal is required to award such amount as it considers just and equitable in all the circumstances, having regard to the loss sustained by the complainant in consequence of the dismissal, in s far as that loss is attributable to action taken by the employer. Since the Tribunal will consider compensation for discrimination first and there can be no double recovery (that is recovery of the same loss twice under different causes of action) we will not make a separate award for compensation for unfair dismissal. The law: injury to feelings

[57]The key guidance on injury to feelings award in discrimination cases was given in Vento v Chief Constable of West Yorkshire Police (No. 2)

[2003] IRLR 102

. This established the three Vento bands. In recent years these have been the subject of regular Presidential Guidance, which aims to take account of the impact of inflation. Because this claim was presented to the Employment Tribunal on 9th March 2021, the applicable guidance included the third addendum, which provided that: In respect of claims presented on or after 6 April 2020, the Vento bands shall be as follows: a lower band of £900 to £9,000 (less serious cases); a middle band of £9,000 to £27,000 (cases that do not merit an award in the upper band); and an upper band of £27,000 to £45,000 (the most serious cases), with the most exceptional cases capable of exceeding £45,000. NB these bands take account of the 10 per cent Simmons v Castle uplift.

[58]The Tribunal also bore in mind the guidance provided in Prison Service v Johnson

[1997] ICR 275

. This noted that: awards must compensate the injured party fully, but should not be used to punish the guilty party; they must not be inflated by a Tribunal’s feelings of indignation; they should not be so small that they diminish respect for the underlying policy of equality legislation, but also not so high that they are regarded as making claims as a route to untaxed riches; they should bear some broad similarity to awards made in personal injury cases and Tribunals should bear in mind the value in everyday life of the sum involved.

[59]It is also well established that the focus when assessing injury to feelings must be on the impact of the discrimination on the individual concerned, see Essa v Lang

[2004] IRLR 313

. This means that awards in relation to similar behaviour may vary widely, because of differences in how they are experienced by the individuals concerned and the impact of the behaviour on them. Something that might have a profound impact on one person (perhaps because they are particularly vulnerable) may have little significant impact on another (perhaps because they are particularly resilient). The same individual may shrug off seemingly serious behaviour on one occasion, but then suffer serious injury as a result of something apparently trivial on another. The focus must always be on the particular impact of specific behaviour on a specific individual.

Conclusions

[60]The parties agreed that Ms McAuley had received a statutory redundancy payment and was therefore not entitled to a sum in respect of the basic award. Would Ms McAuley have been able to return to work?

[61]In respect of compensation for loss of earnings and pension, the key issue was whether Ms McAuley would have been able to return to work, had she been appointed to one of the Faculty Manager roles.

[62]The Tribunal concluded that it was unlikely, had she not been dismissed that, Ms McAuley would have been well enough to be able to work, before she was dismissed on the basis of ill-health by the University.

[63]This is a difficult matter to assess, because it is inevitably speculative. Nobody can know for certain what would have transpired if Ms McAuley had been appointed to either Faculty Manager position.

[64]Ms McAuley’s evidence was that she believed she would have been able to return, as she had in the past. She points out that she had worked for the University for 23 years. On a number of occasions, she had bouts of depression which meant she required time off work, but had always been able to return. In the submissions on her behalf, it was argued that she would have been able to return to work by December 2020, with some form of phased return occurring before that point.

[65]There was support for this view, in particular the Occupational Health reports provided by Dr Zoettl.

[66]The Tribunal also concluded that Ms McAuley’s mental health would probably have been better from July 2020 onwards, if she had been appointed to one of the Faculty Manager roles. In her evidence, she describes her mental health deteriorating and Dr Zoettl noted that the news of her redundancy was likely to have a negative impact on her.

[67]At the same time, there were other factors which had an impact on Ms McAuley’s mental health. Her sickness absence obviously significantly predated her dismissal and therefore was not caused by it. The Tribunal also found that the stress of caring for her son had some impact on her mental health, as suggested by both her evidence and by the 2023 ill health retirement report. It would be wrong to say that Ms McAuley’s mental health difficulties following her dismissal were solely caused by the dismissal.

[68]Nonetheless, as a matter of common sense and industrial experience it is likely that any employee who is experiencing depression who is then told that they are to be dismissed is likely to do worse when compared with a similar situation in which they are successful in being appointed to a new role.

[69]At the same time, Dr Zoettl’s prediction that Ms McAuley would be likely to improve within six months was heavily depended on her being able to access secondary care. When this prediction was made in June 2020, Dr Zoettl did not know that she would not be brought under the CMHT until August 2020. This suggests that, if a similar timeline was still to apply, Ms McAuley would not be able to return to work until around February 2021.

[70]The Tribunal also notes that Ms McAuley’s subsequent struggles with mental health were significantly greater than Dr Zoettl had hoped. It is difficult to judge to what extent this might have been different if Ms McAuley had not been. The Tribunal finds that this was a significant factor, for the reasons set out above. At the same time, Ms McAuley’s mental health difficulties and her sickness absence long predated that dismissal. On the balance of probabilities, the Tribunal concludes that, even had she not been dismissed, it is likely that Ms McAuley would have required somewhat more time to recover than Dr Zoettl anticipated. It is therefore likely that she would not have been able to return to work, even on a phased return basis, when her paid sick leave entitlement ran out in February 2021.

[71]At that point, she would have been off sick for one year, having been appointed to a new role in June / July 2020 which she had not been able to take up, except possibly as part of a phased return.

[72]In practice this would have caused very significant difficulty to the University. The organisation was being restructured and the new academic year started in September 2020. There would be obvious practical difficulties if Ms McAuley was not well enough to be in post at that point. The University would also be naturally concerned if, at that stage, it was uncertain whether she would be able to return and unclear, if she would, when that could be expected.

[73]All of this means that it is likely that the University would have begun to seriously consider the possibility of dismissal on the basis of ill health even before the start of the new academic year.

[74]A key argument made on behalf of Ms McAuley is that the possibility of dismissal could have been avoided by the appointment of someone to cover her role on a temporary basis until Ms McAuley was well enough to return. An analogy was drawn with maternity cover, which is routinely provided by employers. It was argued that such cover would have been provided by the University, on the basis that it would have been a reasonable adjustment to her disability required by the Equality Act.

[75]The Tribunal did not accept this argument. It did not find that the situation was analogous to a maternity cover role. It is much easier for an employer to appoint to a maternity cover position, because that is known in advance and benefits from a relatively clear timeline. This is quite different to a situation where Ms McAuley was already on sick leave and there could be no certainty as to when she would return. Further, it was not clear on what basis Ms McAuley would be able to return. What was in Dr Zoettl’s mind was some form of staged return. All of this would have significantly complicated the appointment of any cover. Attracting a candidate to a cover position in these circumstances would have been extremely difficult. They would have needed someone to take on a role of considerable responsibility at short notice, which might last only a very short period and require some form a job share at the point that Ms McAuley was well enough to return on a phased basis. The situation would have been made more challenging by the ongoing restructure and by the beginning of the new academic year in Autumn 2020. This sort of cover arrangement was unlikely to be practical.

[76]On balance, the Tribunal concluded that it was inevitable in these circumstances that the University would have commenced an ill health / capability process. This might well have occurred before the new academic year or during the autumn term; but it would certainly have occurred before the point at which Ms McAuley was likely to return. Taking into account the length of Ms McAuley’s absence, the fact that at this point it would have been impossible to be sure that she would be able to return and the pressures of the restricting process and the new academic year meant that much the most likely outcome of this process would be that Ms McAuley would be dismissed. Would Ms McAuley have secured ill health retirement at that point?

[77]The Tribunal concluded that Ms McAuley would not have been able to make a successful application for ill health retirement at that point.

[78]The key evidence in this regard is that of Dr Zoettl. His consistent view was that Ms McAuley was not a suitable candidate for ill-health retirement, because her prognosis was too positive to meet the criteria. He expressed this view firmly on the 22nd June 2020 and again on the 15th September 2020. It is notable that, in September 2020 Dr Zoettl was aware that Ms McAuley had been dismissed. He also appears to have been somewhat more pessimistic about her prognosis since, having expected Ms McAuley to be able to return to work full time by December 2020, he was now noting only that it is ‘not beyond the bounds of possibility that this episode of depression will start to lift before the end of the year’. Despite this, he appears to remain confident that ill health retirement was not a likely option.

[79]Even if Ms McAuley had still been off sick in February 2021, it is unlikely that the prognosis for her condition would have worsened to the point that Dr Zoettl (or another OT psychiatrist) would have concluded that she would be unable to return to her current role at any stage before her normal retirement date. Any assessment would have born in mind the same factors identified by Dr Zoettl, in particular the fact that Ms McAuley had previous been able to return to work after periods of ill health and that she had recently begun to receive more intensive secondary care. She would therefore not have met the requirements for ill health retirement at this stage.

[80]The Tribunal noted that the ill health retirement assessment in June 2023 had concluded that Ms McAuley was permanently unable to carry out her previous role. But this conclusion was reached over two years later, when her ill health had continued for a significant period. It did not suggest that the same conclusion would have been reached in February 2021. Financial losses

[81]The Tribunal therefore accepted the University’s submission that the appropriate compensation for loss of earnings was nine weeks of net wages. This represents the nine weeks of remaining paid sick leave would have received from 1st December 2020. This is 9 x £512.70 = £4,614.30. There would not have been any further loss of wages, because she would not have continued to be paid while absent on health grounds after that point and would not have returned to work at the University.

[82]Ms McAuley received Employment Support Allowance of £74.35 from 14th December 2020. This means that 7 weeks x £74.35 must be deducted from the loss of wages. This is £520.45. The final figure for loss of earnings is £4,093.85

[83]During this period there would also have been contributions to Ms McAuley’s pension. Given the short period of time involved it is appropriate to value this loss by reference to the contributions made to the pension scheme. The weekly contributions were £122.81. This is therefore 9 x £122.81 = £1,105.29.

[84]The Tribunal also awarded £500 in respect of loss of statutory rights.

[85]This means there was a total financial loss of £4,093.85 + £1,105.29 + £500 = £5,699.14. This must be reduced by one third to reflect the Polkey reduction. The final pecuniary loss was therefore £3799.43 Injury to feelings

[86]The Tribunal concluded that the appropriate award for injury to feelings was £21,000. This is towards the higher end of the middle band of the Vento guidelines.

[87]In reaching this conclusion the Tribunal took account of the following factors:a. The discrimination in this case was the dismissal of Ms McAuley. Dismissal from employment is generally a significant event that will normally have a substantial impact on an employee. As a general rule, this means that a discriminatory dismissal is likely to fall within the middle band of Vento.

b. This was the dismissal of a long serving employee who had a significant emotional attachment to the University and her role within it.

c. The dismissal was, however, in the context of a redundancy process. It was in no way specifically aimed at Ms McAuley in the sense that she was being deliberately targeted. Rather, as set out in the liability decision, it was a genuine error to appreciate what a fair process required of the University. This type of situation is likely to attract a lower award than a dismissal that involved personal animosity and specific prejudice against an employee, because such personal behaviour is likely to cause greater injury to feelings.

d. The Tribunal accepted Ms McAuley’s evidence that the dismissal caused her a great deal of distress, as detailed in the above findings of fact. Her situation, in particular her mental health conditions, meant that she was less robust than another employee might have been in similar circumstances and suffered greater injury to her feelings as a result. The dismissal was not the only factor contributing to this distress. It had predated the decision to dismiss, as can be seen from the fact that Ms McAuley had been on sick leave for some time with symptoms of depression. Following her dismissal there were other contributing factors, such as the stress of caring for her son in difficult circumstances and her unsuccessful job interview. Nonetheless, her dismissal was a significant factor in Ms McAuley’s distress from that point.

e. The Tribunal accepted the University submission that the discrimination for which liability has been found is limited to the selection process for the two Faculty Manager roles. Although there has been reference to other events within the employment history, these are not relevant to this remedy determination. This means that we are not dealing with a case that involves a prolonged period of discrimination against Ms McAuley.

[88]The Tribunal concluded that it was not appropriate to make a separate award for personal injury. Although the Tribunal accepted that dismissal had an impact on Ms McAuley’s symptoms of depression, the depression itself was a preexisting condition. Both counsel agreed in submissions that the evidence did not establish that there was a psychiatric injury caused by the dismissal. Compensation for the exacerbation of Ms McAuley’s symptoms is properly reflected in the above award for injury to feelings. Interest

[89]Interest on the pecuniary losses runs from the midpoint of the loss (i.e. 1st January 2021) to the judgment date. That is 1425 days. 8% interest on £3,799.43 is £303.95 a year / 83p per day. The total interest on the financial loss is therefore £1,182.75.

[90]Interest on the injury to feelings award runs from the date of dismissal (i.e. 30th November 2020) to the judgment date. That is 1457 day. 8% interest on £21,000 is £1,680 a year / £4.60 per day. The total interest on the injury to feelings is therefore £6,702.20.