Ms A Harutunian v GlaxoSmithKline Services UnLtd and J Ball: 2301374/2020

EMPLOYMENT TRIBUNALS

Case No 2301374/2020

Between

Ms A HarutunianClaimant

GlaxoSmithKline Services UnLtd and J BallRespondent

Before

Employment Judge Martin

Mr Ohringer - Counsel for claimant

Ms Bell - Counsel for respondent

Date 6 December 2023

JUDGMENT

The judgment of the Tribunal is that the claimant is a disabled person as defined in s6 Equality Act 2010 Note: Oral reasons were given at the conclusion of the hearing and written reasons will not be provided unless requested within 14 days of this order being sent to the parties. JUDGMENT

[1]The complaints of victimisation within the meaning of s.27 Equality Act 2010 are struck-out pursuant to rule 37(1)(b) and/or (e). CASE MANAGEMENT ORDERS

[1]The remaining days of this listing,14 – 17 March 2023, are vacated.

[2]The remainder of the Final Hearing is postponed to 13 – 17 and 20 – 24 November 2023

[3]By not later than 31 May 2023, the Claimant must write to the Respondents and the tribunal giving an update on the investigations into the that she reported including:a. What clinicians (if any) she has consulted;

b. What investigations (if any) have been undertaken;

c. What diagnosis if any has been given;

d. What prognosis if any has been given;

e. Whether she is fit to proceed with the final hearing in November 2023 and if not when she will be fit;

f. If she says she is not fit, enclosing medical evidence specifically addressing whether she is fit for the final hearing and if not when she will be fit.

[4]On a day of her choice between 11 and 18 October 2023, the Claimant shall write to the tribunal giving a further update on her fitness for the final hearing. She must:a. State whether she is fit to proceed with the final hearing in November 2023 and if not when she will be fit.

b. If she says she is not fit, enclose medical evidence specifically addressing whether she is fit for the final hearing and if not when she will be.

REASONS

[1]The matter came before the final hearing with a 10 day listing. In the event nearly 6 days were spent dealing with preliminary issues, reading-in and ultimately postponing.

[2]In the course of those 6 days the tribunal made a number of important decisions and a number of important things happened. A proper understanding of what happened and why is only possible if we set matters out chronologically. Background Litigation history

Background

[3]A brief history is as follows: 3.1. The claim was presented on 2 April 2020; 3.2. There was a Preliminary Hearing (PH) for case management on 23 February 2021 before the former President, Employment Judge Doyle. By this stage the Claimant had served detailed further particulars of claim. The case was listed for a 10 day hearing in December 2021; 3.3. On 15 November 2021, there was a Preliminary Hearing before Employment Judge Khalid. By this stage the Claimant had served amended further particulars of claim. The 10 day trial in December 2021 was vacated on the basis that the case would not be trial ready. There had not yet been disclosure of medical evidence, there had not been general disclosure and there were no witness statements. A 3 day open PH was listed for 15 – 17 December 2021 to determine disability status and produce a list of issues. This trial in March 2023 was listed. 3.4. In the event, the open PH took two days. Employment Judge Martin ruled in the Claimant’s favour on the disability status issue. A list of issues that is, on the whole, very helpful was agreed. 3.5. In an email of 18 January 2022, the Claimant noted that Ms Bell had sought further particulars of the protected acts at the Open PH. The Claimant gave about a page of information although she did not mention there the matter she relied upon at trial as her protected act (see below). 3.6. On 7 October 2022, there was an attempt at a PH for case management. The parties were given the incorrect start time among other problems so the hearing was rescheduled. 3.7. By this time case preparation disputes between the parties (which lace essentially the whole chronology) were escalating. The Claimant applied to strike-out the response. The case came before Employment Judge Andrews on 15 December 2022. She refused that application and gave case management orders in respect of case preparation (we say more about these orders below). Of a rule 50 application the Claimant made, Employment Judge Andrews indicated that the case did not appear suitable for a rule 50 order but told the Claimant to make the application in writing if she wanted to persist with it. 3.8. By an email of 29 December 2022, the Claimant among other things applied for a rule 50 order. On this matter the application said only this “the claimant would like to request Privacy and Restriction of Publicity, due to her disability as evidence is of a personal nature and the victimisation that has been imposed and endured as a result. She would like to be able to share these in confidence, so that Employment Tribunal Judge can hear independently and impartial and decision made accordingly and measures put in place by the first Respondent so that what has happened to the Claimant will not happen to anyone else working for the Respondents. This also includes her witness statements and sharing any part of these beyond the identified individuals.” 3.9. Disputes between the parties in relation to case preparation (especially disclosure, bundles and witness statements) continued. 3.10. On 28 February 2023, Employment Judge Webster wrote to the parties giving guidance in relation to the bundle and dealing with the rule 50 application of 29 December 2022. She refused the application and pointed out that the Claimant had not been specific as to why such an order be made beyond asserting that the information was personal. She explained the presumption in favour of open justice and told the Claimant that she could address the tribunal at the outset of trial if she wanted to pursue that order. Documents

[4]The following documents were before the tribunal. We indicate in parentheses on what day of the hearing they were put before us. 4.1. Main hearing bundle running to 1578 pages (day 1); 4.2. Claimant’s ‘provisional’ schedule of loss and mitigation bundle (day 1); 4.3. Respondent’s opening note and appendices (day 1); 4.4. Main witness statement bundle (day 1): 4.4.1. Claimant’s witness statement as exchanged; 4.4.2. James Ball; 4.4.3. Donna Wilson; 4.4.4. Jason Lord; 4.4.5. Roz Austin. 4.5. Agreed chronology and cast list (day 1); 4.6. Two documents disclosed by the First Respondent relating to the Claimant’s 17 August 2018 speak up call (day 2). These documents were then included in the Claimant’s bundle; 4.7. Further statements (day 3): 4.7.1. Updated version of the Claimant’s witness statement with minor changes and cross-referencing added (‘Claimant’s final statement’); 4.7.2. Claimant’s disability impact statement, used at earlier PH; 4.7.3. Mr Bell’s witness statement in response to disability impact statement, used at earlier PH; 4.7.4. Claimant’s response to Mr Bell’s response to her disability impact statement, used at earlier PH. 4.8. Claimant’s bundle running to 33 pages (day 3) 4.9. Dr Cheung, letter of 24 January 2023 (day 4) 4.10. Claimant’s further medical evidence, referral document, two emails from GP (day 6) 4.11. Correspondence handed up by the Claimant (day 6). Representation of the Claimant and presence of the Claimant

[5]The Claimant was represented by counsel, Mr Maini-Thompson, on day 1 to 3 and for part of day 4. We are told that he was instructed through the direct public access scheme. Counsel was sacked on day 4 as described below. It is important to emphasis that nothing we say here is intended expressly or impliedly as a criticism of counsel.

[6]The Claimant was present for all parts of the hearing save between 14.00 and 15.03 on day 2. The circumstances of this are described below. Day 1 (06.03.22)

[7]At the outset of the hearing both counsel confirmed that the issues for determination remained as set out in the agreed list of issues.

[8]The following preliminary issues were identified and discussed in the morning: 8.1. Claimant’s witness statement and claimant’s documents: the Claimant had, that morning, served a different draft of her witness statement and had served a large bundle of documents. She had been in receipt of the main hearing bundle since 27 January 2023 and witness statements had been exchanged in the weeks before the hearing. 8.2. The Respondents’ strike-out application in respect of the victimisation claim. In essence, they submitted that the Claimant had failed to identify the protected acts with sufficient clarity for the Respondent to understand them and prepare. This was despite a tribunal order and several requests for information from the Respondents.

[9]As set out in more detail below the tribunal indicated that it would commence its reading and deal with these matters substantively on day 2 when it better understood the case having done some reading in. In preparation for that, however, we: 9.1. gave the Claimant until 2pm on day 1 to state what the protected act(s) were relied upon since Mr Maini-Thompson indicated that he needed to take instructions; 9.2. asked the Claimant to cross-reference her witness statement to documents since in its existing form it referred to documents without identifying them; 9.3. asked the parties to identify which documents in the Claimant’s bundle were in the main bundle, which were not and of those whether there was any dispute about admissibility. At 2pm the tribunal heard from the parties.

[11]Mr Maini-Thompson identified the protected act with precision, and made clear that now only a single protected act was relied upon, namely: “In or around 17 August 2018, the Claimant made a telephone call to speak up channel and during that telephone call, she made a complaint that James Ball, during a meeting on 11.07.18 had failed to take into account the impact of disability on the Claimant’s ability to prepare for a meeting scheduled for the Long Term Ill-Health process, and in particular how given her nerve impingement she would not be able to prepare in the timeframe.”

[12]The Respondents indicated that the strike-out application was pursued. This was the first they had heard of this putative protected act and were prejudiced by its late identification. The application was deferred until day 2 at 2pm.

[13]In relation to the protected act issue, we asked: 13.1. The Respondents to review their disclosure searches overnight in light of the protected act now being identified with precision by the Claimant’s counsel; 13.2. The Claimant to be ready to point the tribunal to any part of the pleadings or documents where she contended that she had previously foreshadowed what was now relied upon as the protected act.

[14]Mr Maini-Thompson also indicated that the Claimant wished to make a rule 50 application. This was also deferred until day 2 at 2pm.

[15]Little progress had been made in relation to the Claimant’s bundle and witness statement. It was unclear why not.

[16]In relation to the Claimant’s bundle, we were concerned that no progress had been made. We could not let it protract indefinitely: after the initial work had been done it would then be necessary for us to rule on any admissibility dispute and read any key additional documents. We therefore initially made the following orders. By 12pm on day 2: 16.1. The Claimant must add to her witness statement any cross-references to documents in the trial bundle that she wished to add; 16.2. If the Claimant sought to refer to any further documents, i.e., documents not in trial bundle she must: 16.2.1. Provide a table to identify what each of those documents were. The table must indicate whether the document was previously disclosed to Respondent or not; 16.2.2. Provide a paginated supplementary bundle containing those additional documents in electronic form and 4 hard copies.

[17]Mr Maini-Thompson submitted that it would be impossible to get hard copies within that timeframe so (although noting that there are local copy-shops) we removed the requirement for hard copies to be provided on day 2 and deferred it to day 3 save for Ms Bell’s copy which was needed by the end of day 2. Day 2 (07.03.2023)

[18]The tribunal spent the morning of day 2 reading. We heard from the parties at 2pm. At 2pm, Mr Maini-Thompson reported that the Claimant was running late but that he had instructions to proceed in her absence. We therefore did so. She later entered the tribunal room at 15.03. We set out in more detail below – when dealing with her application for reconsideration that was made on day 6 - what the Claimant missed and what she was present for.

[19]The issues in relation to the Claimant’s witness statement and the Claimant’s additional documents resolved. This was essentially through the Respondents taking a helpful and very pragmatic approach. A further draft of the Claimant’s witness statement was handed up. It included cross-referencing that both sides had contributed to and a few other changes compared to the version of the statement that had been exchanged. A small bundle of Claimant’s documents was produced and the Respondents agreed to it being admitted.

[20]We heard the Respondents’ strike-out application and the Claimant’s rule 50 application (these are described further below). This took most of the afternoon and we deferred judgment to the morning of day 3. Day 3 (08.03.2023)

[21]Unfortunately, Ms Bell was ill. However, Mr Griffiths (solicitor) attended to take our ruling on the applications. We set those out immediately below. We used the rest of day 3 for reading. Claimant’s Rule 50 application

[22]Mr Maini-Thompson made the application under rule 50. He submitted that the Claimant did not wish to give evidence in the presence of Mr Ball. He said that the Claimant had been undergoing various “medical distresses” in the last few months and was under clinical investigation. She felt highly pressured by the need to give evidence in open court and wanted any adjustments possible to make it as pressure free as possible. In particular, the adjustment she sought was for Mr Ball not to be present in the room when she gave her evidence. (The Respondents were taken by surprise by the content of this application which had not been foreshadowed).

[23]Asked whether the Clamant was seeking any privacy order, such as a private hearing or anonymisation, Mr Maini-Thompson indicated that the Claimant would like maximal privacy orders but his instructions were to focus on keeping Mr Ball out of the room when she gave evidence. Asked whether the Claimant relied on medical evidence in support of the application Mr Maini-Thompson referred the tribunal to the medical information in the Claimant’s mitigation bundle. This comprised: 23.1. Some information about nerve root impingement; 23.2. A physiotherapy report of 23 November 2021; 23.3. A fit note from 2017; 23.4. A letter from an Extended Phyisotherapist to Neurosurgery relating to an assessment of the Claimant in relation to her ongoing physical pain; 23.5. A letter notifying the Claimant of a gastroenterology appointment in February 2023; 23.6. A letter notifying the Claimant of an outpatient appointment in urology in May 2023; 23.7. A letter notifying the Claimant of an outpatient appointment in endocrinology in July 2023.

[24]As to Mr Ball not being present in the room, Ms Bell indicated that it was not accepted that there was any basis in anything Mr Ball had done or would do for there to be any objective reason for concern about him being in the room. Further, he is a named Respondent and thus a party to the proceedings and he had a right to a fair trial. This required nothing less than him being able to see the Claimant’s evidence and to be able to give his counsel instructions in real time when she cross-examined the Claimant.

[25]The tribunal looked for a practical solution to this problem with the following in mind: 25.1. The tribunal is keen for all witnesses to be as comfortable as possible when giving their evidence and to the extent possible to relieve the pressure of doing so; 25.2. The threshold for making adjustments and giving witnesses special measures should rightly be set low at least where the adjustment can be made without any significant impact on the fairness of the proceedings for other parties; 25.3. Making special measures for the Claimant’s evidence would not in any way impugn Mr Ball and would not reflect negatively in any sense on him; 25.4. Mr Ball’s right to a fair trial indeed meant being able to see and hear the Claimant’s evidence and being able to give his counsel instructions in real time during the course of that.

[26]The best solution, which we canvassed with the parties and which they approved, was for the Claimant to give her evidence by video-link from a different room in the tribunal. That way she would not be in the same room as Mr Ball. However, everyone including Mr Ball would be able to see and hear her evidence. Mr Ball would be able to give his counsel instructions as required in real time. Further, the tribunal staff could manage the video-link technology, relieving the Claimant of any additional burden related to that.

[27]The tribunal plainly has power to make these adjustments. We agreed to make them albeit under rule 41, rather than rule 50.

[28]We rejected the Claimant’s wider application for privacy orders and gave the following reasons.

[29]We began by reminding ourselves of the terms of rule 50. We further reminded ourselves of the following convention rights:

[30]The principle of open justice of great importance. It was explained thus by Simler J (as she was) in Fallows v News Group Newspapers Ltd

[2016] ICR 801

: 58 The importance of the common law principle of open justice was emphasised and explained in Global Torch Ltd v Apex Global Management Ltd

[2013] 1 WLR 2993

, paras 13—14. Reference was made by Maurice Kay LJ to R v Legal Aid Board, Ex p Kaim Todner

[1999] QB 966

, 977 and Lord Woolf MR’s holding that the object of securing that justice is administered impartially, fairly and in a way that maintains public confidence is put in jeopardy if secrecy is ordered. Lord Woolf MR identified the ends served by open justice as follows: It is necessary because the public nature of the proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely… Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it.

[31]In BBC v Rolden

[2015] IRLR 267

Simler J said this:

[32]The proper approach for a tribunal to take was considered at [41] and [48]-[50] of Fallows from which the following principles can be drawn: 32.1. The power to grant Restricted Reporting Orders is not limited to the circumstances set out in ss. 11-12 of the ETA 1996 [although s.12 is relevant here as this is a case in which there will be some disability related evidence of a personal nature]. The Tribunal has a power to make an order in any case where it is necessary to do so to protect Convention rights or the administration of justice, and such orders may extend after judgment is given, and so may permanently restrict reporting information about the proceedings ([41]). 32.2. The burden of establishing any derogation from the principle of open justice falls on the applicant and must be established by clear and cogent evidence ([48](i)]. 32.3. Where the Tribunal is satisfied that Article 8 is engaged on the facts of a particular case, it must conduct a balancing exercise, weighing the strength of that right against the correspondence rights of the press and public to impart and receive information about the proceedings [49].

[33]Even if we assume that Article 8 is engaged by the fact that the evidence will include information about the Claimant’s health, there is no basis for interfering with the principle of open justice.

[34]Aside from the Claimant’s strong preference for the hearing to be as private as possible and the fact that there will be reference to personal information in the proceedings, no specific reason was given as to why any sort of privacy order should be made. We accept that the Claimant is under some medical investigations for weight loss and we accept that this and her disability, which relates to nerve impingement in the hand, is personal information. However, there is an absence of clear and cogent evidence to establish any need for any derogation from open justice.

[35]In this regard, in our view, matters have not moved on since the last occasion when Employment Judge Webster refused the application on the basis that there was insufficient grounds to derogate from the principle of open justice. Victimisation strike-out application

[36]One of the heads of claim is victimisation within the meaning s.27 Equality Act 2010.

[37]The form ET1 refers briefly to ‘victimisation’ but does not identify or at least, not clearly, the protected act(s) relied upon. The Claimant’s Further and Better Particulars (as amended) says this about the protected acts:

[38]The List of Issues, agreed at the PH of 15 – 16 December 2021, says only this in relation to the protected acts:

[39]The difficulty is that the Speak Ups (there were two) and the later grievance each triggered processes which each involved numerous people, numerous events, numerous conversations and a various pieces of correspondence. It is unclear from the information given prior to Day 1 of the trial, where and what within all of that the protected act(s) was/were said to be.

[40]Thus, in her case management orders at the Preliminary Hearing on 16 December 2022, Employment Judge Andrews ordered the Respondents to send a “revised request for further particulars of the protected acts relied upon in the claim form” by 20 December 2022. She further ordered that by 30 December 2022 the Claimant “shall reply to the request for further particulars setting out specifically and shortly what she says were the protected acts, when and how they were made and to whom.”

[41]The Respondent made a request for particulars of the protected act on 20 December 2022. It is commendable for its clarity and simplicity:

[42]The Claimant responded by email on 29 December 2022. The email included a lot of text on the general topic of protected acts but it did not provide the information EJ Andrews had ordered nor that the Respondent had reasonably requested. It unfortunately did not actually assist in identifying what the protected act(s) was/were. It said this: What protected acts; making complaints, informing of non-compliances, doing anything else in connection. Some specific and short responses have already been shared in the Claimant’s Further and Better Particulars of Claim – Amended, please see attached for more details. When; this has been on going due to James Ball (Second Respondent’s) course of conducts and discrimination of the Claimant’s disability and victimisation which kept on getting worse, over time, up until and even beyond her dismissal on 4 December 2019, therefore including First Respondents. James Ball and First Respondents were made aware of these protected acts during the above-mentioned time by the Claimant. Some specific and short responses have already been shared in the Claimant’s Further and Better Particulars of Claim –Amended, please see attached for more details. For example August 2018, January 2019, April 2019, November 2019, December 2019, January 2020. How; Claimant informed James Ball at their face to face meetings, she raised two Speak Ups in August 2018, escalated to have these Speak Ups reopened in January 2019 and one of this was changed to Grievance, escalated to have the Grievance reopened in April 2019, raised appeals in December 2019 and January 2020. Subsequently, Claimant having tried ACAS reconciliation, but as neither the Respondents nor their legal representatives engaged, she submitted her Claim to Employment Tribunal on 2 April 2020, so that she would not be out of time. To Whom; James Ball, Management, Human Resources, Investigators, ACAS, Employment Tribunal The details and evidence of the above have already been referenced in the Claimant’s Further and Better Particulars of the Claim – Amended and/or provided to Respondents and their legal representatives. Some of these have already been included in the draft Bundles that the Respondents legal representative has sent. However, there are some which the Claimant has shared with the Respondents legal representative, but these have not yet been included to date, to the Claimant’s knowledge. Furthermore, there are evidence which Claimant has requested the disclosure of since February 2022, but these have not yet been provided, as per the Respondents’ legal representatives responses in the table titled - Disclosure and Inclusion of Documents Request Different Format – Updated 5 Nov 2022.

[43]The Respondent wrote to the Claimant on 5, 13, 20 and 23 January 2023 politely asked on each occasion for the Claimant to provide the further information requested. There was no response.

[44]As stated above, on day 1 at 2pm, Mr Maini-Thompson said there was only one protected act relied upon and it was as follows; “In or around 17 August 2018, the Claimant made a telephone call to speak up channel and during that telephone call, she made a complaint that James Ball, during a meeting on 11.07.18 had failed to take into account the impact of disability on the Claimant’s ability to prepare for a meeting scheduled for the Long Term Ill-Health process, and in particular how given her nerve impingement she would not be able to prepare in the timeframe.”

[45]The Claimant’s own note of the telephone conversation is at p411 of the bundle. It does not record the matter that is now relied upon as the putative protected act. Mr Maini-Thompson accepted that this was the case and on instructions said it was because at the time the Claimant made the note she did not have this point at the front of her mind.

[46]In her witness statement the Claimant refers to the speak up call but does not give any evidence specifically setting out the part of the 17 August 2018 telephone conversation that is now relied upon as the (only) protected act. She said this in her statement:

[47]Paragraph 55 comes quite close to referring to the subject matter that is relied upon as the protected act (although it does not actually set out the particular complaint made). However, paragraph 55 is not about what the Claimant said in the telephone call of 17 August 2018 (which is when the protected act is said to have been done). It is about the grievance process many months later.

[48]Ms Bell submitted that the Claimant’s conduct had been deliberately unreasonable, that a fair trial of the victimisation claim was not possible and that striking out the victimisation complaints was proportionate.

[49]In the course of making the application the Respondent handed up two documents: 49.1. One appeared to be the contemporaneous note of the Speak Up call produced by the person the Claimant spoke to. The Respondent thinks this document was previously disclosed to the Claimant but is not certain. The Claimant is uncertain. 49.2. A further ‘back-end’ document with log details about the call, like the timing of it and who the call handler was and who it was passed to. This had not previously been disclosed.

[50]In our view these documents are essentially consistent with the Claimant’s record of the conversation at p411. What they do not do is record, even in note form, the passage of conversation the Claimant now relies upon as the putative protected act.

[51]During Mr Maini-Thompson’s submissions, Judge Dyal read back his note of what Mr Maini-Thompson had said the protected act was on Day 1 and asked him to confirm that it had been accurately captured. He confirmed that it had.

[52]In his submissions, Mr Maini-Thompson said that the Claimant had told one of the Respondent’s employees, Ms Denman that she had raised a speak-up, and had done this in around September or October 2018. However, that conversation (assuming it happened, and there is no dispute the Claimant raised the Speak Up) predated the litigation by some years. Further, Mr Maini-Thompson did not go so far as to say that the Claimant had told Ms Denman that the conversation included the information that is now relied upon as the protected act. (We note that Ms Denman was not one of the Respondents’ witnesses nor was there any reason to anticipate she would be needed.)

[53]Mr Maini-Thompson rightly emphasised that the Claimant had been acting as a litigant in person and that managing the litigation had been very challenging for her. He also emphasised that she had always been clear that the protect act was done in the August 2018 Speak Up.

[54]We struck-out the victimisation claims and gave the following reasons for doing so. Law on striking-out

[55]By rule 37 the tribunal has a power to strike-out all or part of a claim. We referred ourselves to the whole rule and note the particular relevance of rule 37(1)(b), (c) and (e).

[56]In Blockbuster v James

[2006] IRLR 630

, Sedley LJ, summarised the applicable legal principles: This power, as the employment tribunal reminded itself, is a draconic power, not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response. The principles are more fully spelt out in the decisions of this court in Arrow Nominees v Blackledge

[2000] 2 BCLC 167

and of the EAT in De Keyser v Wilson

[2001] IRLR 324

, Bolch v Chipman

[2004] IRLR 140

and Weir Valves v Armitage

[2004] ICR 371

, but they do not require elaboration here since they are not disputed. It will, however, be necessary to return to the question of proportionality before parting with this appeal.

[57]Also of importance is what Sedley LJ said at [19]: …it takes something very unusual indeed to justify the striking out, on procedural grounds, of a claim which has arrived at the point of trial. The time to deal with persistent or deliberate failures to comply with rules or orders designed to secure a fair and orderly hearing is when they have reached the point of no return. It may be disproportionate to strike out a claim on an application, albeit an otherwise well-founded one, made on the eve or the morning of the hearing.

[58]In this case we are satisfied that the Claimant did breach Employment Judge Andrews’ order and acted unreasonably in failing to answer the simple questions the Respondents posed in the request for further information about the protected act(s) and which was then followed up some four times.

[59]In reaching this view we take into account the fact that the Claimant is and has been a litigant in person, that she was dealing with a large piece of litigation at its ‘business end’ and that providing further information was not the only issue she needed to manage. There were ongoing disputes about the disclosure, the bundle and the exchange of witness statements. She is also dealing with some health concerns that are under investigation (per the medical evidence in the mitigation bundle).

[60]We also take into account the fact the Claimant did provide some response to the Employment Judge Andrew’s order made by her email of 29 December 2022 (so it is not the case she ignored it altogether) and had provided some information about protected acts in the list of issues and in her pleadings.

[61]There is no doubt that the Claimant is a highly intelligent person and, even making all due allowances for the matters we have canvassed, she was very capable of providing the information that she was ordered to and which the Respondent requested. There was no legal technicality to what needed to provide, it was simple factual information. The way in which the Respondent expressed the request was simple and easy to follow. In our view the Claimant could and should have answered the request and her failure to do so was unreasonable.

[62]Further and in any event, and whether the conduct was unreasonable or not, it has made a fair trial of the victimisation claim impossible: 62.1. An issue in the case is whether or not the Claimant did a protected act. Doing a protected act is an essential element of a victimisation complaint. 62.2. The Respondents made every reasonable effort in advance of trial to try and discover critical details about the protected act(s) that would enable them to have a fair opportunity of defending the claim. 62.3. The Claimant stated those details for the first time on day 1 of the trial. 62.4. The sole matter relied upon as a protected act is something she says she said in a telephone conversation in August 2018. The matter she relies upon is not recorded in either her note of the conversation nor the note of the person that she spoke to. 62.5. The Speak Up line was administered by a third party in Canada. The conversation was four and a half years ago. The person the Claimant spoke to, one Ms Brink, is not one of the Respondents witnesses and they have not at any time proofed her. There was no dispute that the Claimant had raised a speak-up call on 17 August 2018. The disputed detail about this telephone call crystalised only at trial: whether the Claimant actually said to Ms Brink what she now says she did and relies on as her protected act. Thus we do not think the Respondents could be fairly criticised for not proofing Ms Brink when preparing this case. 62.6. Ms Brink was employed by a third party and is a person unknown to the Respondents. She is not available to them at zero notice or for this trial. 62.7. This case is going stale. It was presented in 2020 and it relates in part to yet more historical events that date back to 2017. 62.8. The trial has already been postponed once before in December 2021. 62.9. It would be wholly wrong to postpone the trial in order to make inquiries of Ms Brink. 62.9.1. The fairness of a trial includes fairness to the Respondents and they are entitled to have the case heard and determined. 62.9.2. Further, we must also have regard to other tribunal users. The tribunal’s resources are a scarce and precious. We currently have levels of delay at historically high levels in getting cases heard. 62.9.3. This matter has been listed for 10 days, a great deal of tribunal time. We have spent two days reading into the case as well as dealing with preliminary issues and are ready to proceed. 62.10. There are a great deal of other issues beyond victimisation which we can deal with at this hearing. 62.11. There is not in any event any request from the Claimant’s side to postpone.

[63]We also consider that it would be proportionate to strike-out the victimisation case: 63.1. The Claimant’s default was significant and repeated; 63.2. A fair trial is not possible of the victimisation claim. There is only one putative protected act, and for the reasons given there cannot be a fair trial now of whether the Claimant in fact did or did not do that protected act; 63.3. For the reasons already given postponing the case on this account would be quite wrong and would be disproportionate. 63.4. The Claimant has a large number of other complaints before the tribunal which we can and will decide on their merits. 63.5. In the circumstances of this case, there is no lesser sanction than strikingout that we can apply and nonetheless have a fair trial of the victimisation claim.

[64]We remind ourselves that it takes something exceptional to strike-out a complaint on essentially procedural grounds once it has reached trial. However, what we have outlined above is exceptional and leaves no viable alternative to striking out the victimisation claim.

[65]We also note that we have had regard to the fact that the First Respondent made late disclosure of one or possibly two documents. If those documents had supported the Claimant’s account of the passage of conversation that she relies on as her protected act that would have significantly altered the analysis. However, they do not and the analysis as we have set out above applies.

[66]We finally note we do not think it would not be right for the tribunal to identify other possible protected acts in the extensive materials before it (and undoubtedly there are other possible protected acts in the material) and proceed with the victimisation claim on the basis of those. That would involve the tribunal pleading and/or formulating the Claimant’s case for her and doing so in a manner that was different to the way she, through counsel, wished to state her case. That would be to enter the arena. Day 4 (09.03.2023) Claimant’s application to give an additional oral statement

[67]On day 4, just before the Claimant’s evidence was due to begin, Mr MainiThompson applied on instructions for the Claimant to be given permission to make an additional oral statement.

[68]During the course of him making the application Judge Dyal asked what the gist of the proposed oral statement was. Mr Maini-Thompson said that he was unable to say, other than that it would go beyond what was in the Claimant’s written witness statement.

[69]The Respondent objected. It had a longstanding concern (foreshadowed in its opening note) that the Claimant would seek to continually move the goalposts including by augmenting her witness evidence.

[70]The tribunal refused the application: 70.1. The Claimant had served an 18 page witness statement in the case shortly before trial and an amended version of it on day 3. 70.2. She had given no indication of what the additional statement was that she wanted to make - not even the gist of it. Counsel could only say it went beyond what was in her existing witness statement. 70.3. By not telling the tribunal even the gist of the proposed evidence we could not make any deeper assessment of whether or not the proposed additional evidence was relevant or whether it whether it would be prejudicial to allow the Claimant to adduce it. 70.4. In all the circumstances, it would not be fair to the Respondent to simply give the Claimant carte blanche to give further evidence with no foresight at all of even the gist of it. Sacking of counsel

[71]After this ruling the Claimant’s evidence was due to begin. The clerk took her down to the corridor to room 3 to give evidence by videolink but unfortunately the camera malfunctioned in that room so she returned while the system was rebooted. When she returned she had whispered conversation with Mr MainiThompson. Mr Maini-Thompson got up and then left the room.

[72]It was unclear to the tribunal what had happened, whether perhaps he had withdrawn, been sacked or left for other reasons. Judge Dyal tried to understand the position from the Claimant. She insisted that she needed to say something and that it was not a statement. Judge Dyal asked the Claimant if Mr MainiThompson had been sacked. The Claimant said she wanted him to keep acting for her but she had been told that she could speak if he is here. Judge Dyal told the Claimant that she could not make an additional oral witness statement whether Mr Maini-Thompson was here or not. More generally, that if he was representing her then he spoke on her behalf, with her instructions, except when she was giving evidence which she was about to do for the next day or two. Judge Dyal asked again if the Claimant had sacked Mr Maini-Thompson and she said she had not and wanted him to be there. She said he is very ethical and by the book, that he had been very helpful and that she could not do it without him.

[73]Judge Dyal told the Claimant that she should go and speak to Mr MainiThompson if she wanted him to act for her as had left the room. He suggested a break for that to happen. The Claimant said that she needed to say something because it would affect how the proceedings have gone and will go and that it was not a statement. Judge Dyal told the Claimant that if what she had to say was about what adjustments were needed for her to take part in the hearing or matters of that sort then she could tell us, although if she was represented Mr Maini-Thompson could make the representations. We then took a break for the Claimant to speak to Mr Maini-Thompson. Ms Bell offered to speak to the Claimant or as the case may be her counsel about what it was that she wanted to say and it may be that it was uncontroversial.

[74]We broke at about 11.38 am. At around 12.10 the tribunal’s clerk passed on the message that Mr Maini-Thompson requested a further 30 mins. We agreed to that. At around 12.38pm the hearing resumed. Mr Maini-Thompson explained that he had been sacked, that even if the Claimant wished to re-instruct him he would be obliged to reject the instructions (having taken advice from the Bar Council ethics line and senior colleagues) and that he believed it in the interests of justice to adjourn (whether for a short or long period) for the Claimant to obtain further representation. He said that his assessment was that the case was not suitable for public access instructions (which had been the basis of his instruction).

[75]The Claimant then wanted to address the tribunal about some medical issues that she said would affect the hearing. She did not want the Respondents’ witnesses or Mr Ball in the room. Ms Bell did not object to the Respondent’s witnesses being asked to leave, but did object to Mr Ball being asked to leave. It was his trial too and he needed to know what was being said. During the adjournment Ms Bell had offered to speak to the Claimant / Mr Maini-Thompson about what the Claimant wanted to say but, on the Claimant’s account, there had not been time.

[76]The tribunal wanted to hear from the Claimant about medical issues that she considered would affect the hearing not least so that we could decide how to manage them. The tribunal asked the Respondents’ witnesses to leave (as the appearance was that the Claimant was about to disclose something very personal) but did not ask Mr Ball to leave. As a party to the proceedings, we agreed with Ms Bell that he needed to be able to hear what the Claimant had to say.

[77]The Claimant then addressed the tribunal. She was very distressed when doing so. A summary is as follows: 77.1. She had been experiencing medical problems of three kinds: 77.1.1. The nerve entrapment issues that cause musculoskeletal pain; 77.1.2. Unexplained weight-loss which is being investigated as a matter or urgency; 77.1.3. problems including the following: j

[78]Judge Dyal, said to the Claimant that the tribunal needed to know what her preferences were as regards the trial. He outlined what appeared to him to be the main three options: 78.1. To carry on with the trial with the Claimant now representing herself – this could involve a short adjournment but the idea would be to complete the trial in the existing listing; 78.2. Adjourn the trial for a short period with view to the Claimant instructing alternative lawyers to act during this trial listing. Admittedly, the chances of this coming to pass were limited given the nature of the case and the stage the proceedings were at; 78.3. Adjourn the trial to another listing. Application to adjourn

[79]The Claimant’s preference, and application, was to postpone the trial.

[80]The Respondents opposed the application: 80.1. They did not accept without some medical evidence that the Claimant was suffering from the problems she says she is. It would be sensible to have a short adjournment to allow the Claimant to get or attempt to get medical evidence; 80.2. The Claimant had sacked Mr Maini-Thompsons in order to try and get around the tribunal’s ruling that she could not give an additional oral statement. Her lack of legal representation had to be seen in that context. She was no prejudiced by the lack of legal representation.

Law

[81]The tribunal’s powers of postponement are set out in rule 30A.

[82]The circumstances here are such that rule 30A(2)(c) applies and the hearing can only be adjourned if there are exceptional circumstances. This is a ‘serious hurdle’ that is intended to discourage late adjournments (Morton v Eastleigh CAB

[2020] EWCA Civ 386

. When applying rule 30A the tribunal should seek to give effect to the overriding objective.

[83]In Ameyaw v PwC Services Ltd, Mathew Gullick QC sitting as a DJHC said at [53] “…the definition of “exceptional circumstances” is not closed and that it is a question for the judgment of the Employment Tribunal in the individual case….”

[84]The Presidential Guidance – Seeking a Postponement of a Hearing gives basic guidance about applications to postpone. It suggests that applications to postpone on medical grounds should be supported by medical evidence and that the evidence should comment on the applicant’s fitness to participate in tribunal proceedings.

[85]In Teinaz v London Borough of Wandsworth

[2002] IRLR 721

, the following guidance was given: “20. … I would make some general observations on adjournments. Every tribunal or court has a discretion to grant an adjournment, and the exercise of such a discretion, going as it does to the management of a case, is one with which an appellate body is slow to interfere and can only interfere on limited grounds, as has repeatedly been recognised. But one recognised ground for interference is where the tribunal or court exercising the discretion takes into account some matter which it ought not to have taken into account: see, for example, Bastick v James Lane Ltd

[1979] ICR 778

at 782 in the judgment of Arnold J giving the judgment of the EAT (approved as it was in Carter v Credit Change Ltd

1980 1 All ER 252

at p 257 per Lord Justice Stephenson, with whom Cumming-Bruce and Bridge LJJ agreed). The appellate body, in concluding whether the exercise of discretion is thus vitiated, inevitably has to make a judgment on whether that matter should have been taken into account. That is not to usurp the function of the lower tribunal or court: that is a necessary part of the function of the reviewing body. Were it otherwise, no appellate body could find that a discretion was wrongly exercised through the tribunal or court taking into account a consideration which it should not have taken into account or, by the like token, through failing to take into account a matter which it should have taken into account. Although an adjournment is a discretionary matter, some adjournments must be granted if not to do so amounts to a denial of justice. Where the consequences of the refusal of an adjournment are severe, such as where it will lead to the dismissal of the proceedings, the tribunal or court must be particularly careful not to cause an injustice to the litigant seeking an adjournment. …” 21. A litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment, however inconvenient it may be to the tribunal or court and to the other parties. That litigant's right to a fair trial under

Article 6 of the European Convention on Human Rights

demands nothing less. But the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the applicant for an adjournment to prove the need for such an adjournment.

[86]In O'Cathail v Transport for London

[2013] IRLR 310

Mummery LJ said this at [45]: ''Overall fairness to both parties is always the overriding objective. The assessment of fairness must be made in the round. It is not necessarily predetermined by the situation of one of the parties, such as the potentially absent claimant who is denied an adjournment.''

[87]His Lordship went on at [47]: “Finally,

Article 6 of the Convention

does not compel the ET to the conclusion that it is always unfair to refuse an application for an adjournment on medical grounds, if it would mean that the hearing would take place in the party's absence. There are two sides to a trial, which should be as fair as possible to both sides. The ET has to balance the adverse consequences of proceeding with the hearing in the absence of one party against the right of the other party to have a trial within reasonable time and the public interest in prompt and efficient adjudication of cases in the ET.”

[88]In Khan and another v BP Plc,

UKEAT/0017/21/JOJ

, the Claimant’s counsel was taken ill shortly before a three week trial. The ET erred in law in refusing an application to postpone. The circumstances were such that it was agreed between the parties that counsel’s illness was genuine. The circumstances were also such that instructing an alternative representative was impossible in the circumstances. Choudhry P said this: “There is undoubted prejudice caused to a party losing representation at such a late stage and it would not be consistent with the overriding objective and the need to ensure that parties are on a level playing field for the case to proceed in these circumstances.” 80. In Phelan v Richardson Rogers [2021] I.C.R. 1164, HHJ Auerbach said this:75. First, where the application is to postpone a trial or other hearing, the outcome of which may dispose of the claim, or some other material substantive issue in the case, the applicant's article 6 and common law rights to a fair trial will be engaged. Because of the serious consequences of refusing a postponement, it should, in such cases “usually” be granted. If what sits on the other side of the scales is simply the inconvenience and cost to the other party of the matter going off, then any tribunal properly carrying out the balancing exercise would be bound to grant the application, and a decision not to do so is liable to be overturned, applying Wednesbury principles. That is the point of Peter Gibson LJ's dictum in Teinaz . Because of what is at stake for the applicant in such cases, a failure properly and fairly to appraise the medical evidence with due care will also vitiate the exercise of the discretion, as was found to have occurred in both Teinaz and Solanki .

76. However, as the foregoing authorities also plainly establish, the potential impact on the other party's fair trial rights, and the wider public interest, do also fall to be placed in the scales on the other side, and, if sufficiently weighty in the given case, may be properly found to tip the balance against the grant of the application. That is the point of Mummery LJ's observations in O’Cathail , especially at para 47, and Longmore LJ's closing observation in Riley .

77. In most cases, such as those involving a sudden accident or short-term illness, the balance will clearly and obviously point in favour of granting the application, and it may, indeed, not be opposed. With many illnesses or injuries, the likely timescale for recovery can also be stated, and assessed, with some confidence; and the decision for the tribunal is, again, unlikely to be a difficult or controversial one. But cases concerning mental ill-health, by way of prolonged or recurring stress, anxiety, and/or depression (often associated with the litigation or its subject matter, itself), perhaps tend to dominate the authorities, because they often involve (or are said to involve) features that potentially have weightier implications for the other party's rights to a fair trial within a reasonable timescale, and/or wider public interest considerations.

78. There is one other aspect worth noting. In principle, the question of whether to postpone a trial on grounds of medical unfitness, and that of what adjustments may be necessary to enable fair participation in litigation or a trial, arise from different scenarios. But in practice there may sometimes be features of both present, or the situation may otherwise require some careful scrutiny, to enable the tribunal to see clearly what is truly at issue. Tribunal’s initial decision

[89]Our initial response to the application was to adjourn proceedings on day 4 (a Thursday) in order for the Claimant to seek to secure medical evidence and/or fresh legal representation.

[90]The tribunal drafted the following to assist the Claimant in making a focussed request for medical evidence (and gave her both a hard and soft copy): “The Claimant has reported to the tribunal Is the Claimant currently fit to participate in employment tribunal proceedings: A) as a litigant in person (e.g. she would need to answer questions posed to her by the other side’s barrister, to cross-examine the other side’s witnesses, to navigate a bundle of documents and make a closing statement)? B) if legal represented (she would need to be able to answer questions posed to her by the other side’s barrister and give her representative instructions about the case so he/she can cross examine the other side’s witness and generally represent her)? If not, are you able to say when she is likely to be?” Day 5 (10.03.2023)

[91]The tribunal was in chambers; the parties were not in attendance in order to allow time for the Claimant to obtain medical evidence and/or instruct new lawyers. Day 6 (11.03.2023) Application to postpone resumed

[92]The Claimant pursued the application to postpone. She had attempted to instruct fresh lawyers but without success. The timescales involved were prohibitive. The Claimant had contacted her GP with the following results.

[93]Firstly, she had been referred for an urgent appointment to commence investigations into the problems she reported.

[94]Secondly, the Claimant handed up an email from her GP. It stated “I am not able to give an opinion on your suitability to attend court I’m afraid. I am not an expert in or legal requirements for court appearances so will not be able to answer the questions you sent in.”

[95]Thirdly, the Claimant forwarded an email from her GP that stated: Dear Mrs Harutunian, thanks for the email. The referral letter is your data so you can do with it as you wish. I would probably sign you off for 2 weeks to start with and see how that affected your issues.

[96]The Claimant also reported to us that she had had a car accident on the way to the tribunal. She said she had not slept for a long time and that she had been nodding off on the journey which was a long one. She said that she had had a number of near misses.

[97]The Claimant submitted that she needed to be legally represented in order to have a fair hearing. She referred to Mr Maini-Thompson’s submission that this was the case. She also referred to his submission that the case was not suitable for direct public access. She also suggested that she had not been present for the Respondent’s strike-out application and that the tribunal had proceeded with it in her absence. We deal with this matter more fully below.

[98]The Respondents opposed the application. Ms Bell submitted that it was a balancing exercise and that the balance favoured continuing.

[99]In this case there are really two strands to the Claimant’s application to postpone, although they are inter-related.

[100]The first is that she prepared for the trial on the basis that she would be represented by Counsel. On day 4 of the hearing, counsel was sacked. He effectively indicated that in any event if he had not been sacked he would have had to withdraw. He reached that conclusion after taking advice from the Bar Council ethics line and from senior colleagues. He would therefore not accept reinstructions if the Claimant changed her mind and sought instruct him.

[101]This is a heavy case. The issues are complicated factually. The bundle is over 1500 pages long. The Respondent’s witness evidence is over a 110 pages long. The Claimant is not a lawyer nor is she an advocate. She had not prepared any cross-examination as she was expecting counsel to do it. It seemed to us that the Claimant was significantly prejudiced by losing counsel mid-trial.

[102]It would be one thing if she had planned to present her own case at the hearing and prepared on that basis but it is quite another to prepare on the basis of being represented by counsel and then no longer to have counsel.

[103]The Respondents submit in effect that this factor is tempered by the Claimant choosing to sack counsel and doing so in order to get round him seeking to respect the tribunal’s ruling that the Claimant could not give an additional oral witness statement.

[104]The problem with that submission is that in reality we are in no position to fully understand the reason(s) why counsel was sacked nor whether the Claimant behaved unreasonably / strategically in that regard. That is because we have not been privy to most of the conversations between the Claimant and her counsel which rightly took place privately under privilege. We really do not know anything like the full story of what passed between them nor would it be proper for us to try to get to the bottom of that.

[105]Beyond that, in so far as we do have any visibility of why counsel was sacked, it seems to have been at least in part because the Claimant wanted to report particular health issues to the tribunal and her understanding was that she needed to sack counsel in order to do that. If at the time the Claimant applied to make an additional oral witness statement we had we known that what the Claimant wanted to do was report some health issues - we would simply have asked counsel to tell us what the health issues were. However, as above, when the application was made for the Claimant to give an additional oral statement we asked what the gist of it was and counsel was unable to say save that it went beyond her witness statement. (There are various possible reasons why he was unable to say and we do not know which is the applicable one.) Whether the Claimant’s understanding - that she needed to sack counsel in order for the tribunal to come to know the health issues she wanted to report – was reasonable or not is impossible for us to assess. It would depend largely on privileged conversations between the Claimant and counsel.

[106]All in all, the circumstances are such that we could not fairly conclude that the Claimant culpably brought upon herself the prejudice she would experience if suddenly required to self-represent for the remainder of trial. This prejudice thus weighs heavily in the balance.

[107]For the avoidance of doubt, nothing we say here is a criticism of Mr MainiThompson even impliedly. He was bound by, among other things, his instructions and we have no clear idea of what they were.

[108]The second strand is the health strand. The Claimant reports significant problems. Taken at their highest they could represent a significant barrier to participation in the trial particularly if self-representing.

[109]It must be said that the Claimant is partly to blame for this matter arising in the unmanaged way that it has. It seems that she has been experiencing symptoms for some months (according to the referral). Yet she did not do anything to manage the situation in advance of trial. For instance, no application to postpone was made to allow investigations to be carried out.

[110]The evidence that we do have is equivocal. The most recent email from the GP suggests the GP would sign the Claimant off of work for two weeks. That is not the same as saying in terms she is unfit for tribunal proceedings (something the GP declined to express an opinion on directly) but is certainly ‘trending in that direction’. That is especially so given that the Claimant does not have a job and her current work is, more than anything, pursuing the tribunal proceedings. Realistically, the tribunal proceedings in this case would be a lot more demanding than day to day work.

[111]There is, overall, a reasonable basis (the Claimant’s self-reporting and such medical evidence as there is) to conclude that the Claimant may be unfit to proceed. The evidence is imperfect but the timing and nature of the reported illhealth are such that there is no option of deferring the decision to get better evidence.

[112]The possible unfitness for trial also weighs heavily in the balance.

[113]There can be no doubt that the above two factors we have analysed each amount to an ‘exceptional’ reason within the meaning of rule 30A and all the more clearly do so when put together.

[114]Still, there is another side to this which we must weigh in the balance. The Respondents have a right to a fair trial and that includes one that takes place in a reasonable timeframe. This is a case that has been postponed once before and is already getting old and stale. A great deal of time and cost had no doubt been expended in preparing for this hearing.

[115]Having made inquiries of listing, the case can come back before the tribunal as soon as September 2023 (in the event we have postponed to November 2023 to take account of the Respondents’ availability). That is a significant delay and one we take very seriously.

[116]However, it is clear to us that the factors in favour of postponement do outweigh the factors in favour of continuing and thus whilst regretting the delay and cost, on balance we must postpone. Application for reconsideration of strike-out

[117]The Claimant applied for the tribunal to reconsider its strike-out of the victimisation claim. The basis of the application was that the Claimant said she had not been able to participate in the application because she had been absent. She said that she had asked her counsel to delay the start of the hearing until 2.30pm on day 2 so that she could attend but that she was told (by him) it would start at 2pm and there was no scope for a later start. She suggested that when she arrived on day 2 the application had finished and all she heard was Judge Dyal saying that he would not summarise what had happened but that her counsel would explain it to her later.

[118]The Claimant said that if she had been present at the application she could have pointed to relevant documents. She referred to her email of 29 December 2022 (and would have handed it up save that Judge Dyal indicated the tribunal already had it, and indeed had referred to it in terms in it’s reasons).

[119]The Claimant handed up a further five documents all correspondence: 119.1. 18 January 2022 email to tribunal; 119.2. 4 July 2022, email to tribunal; 119.3. 1 June 2022, email to Mr Griffiths 119.4. 27 June 2022, email to Mr Griffiths 119.5. 21 July 2022, email to Mr Griffiths;

[120]The Claimant submitted that she had provided information about her protected acts and that the Respondent was culpable for delays in disclosure. She suggested that the difficultly arose because there had been a Speak Up and a grievance process and it was necessary to pick-out documents from that process and she had not been present during the strike-out application. She also suggested that Mr Maini-Thompson had not been instructed long enough to know the case well enough to do this.

[121]It was evident that one of the things the Claimant was doing was moving the goalposts. Whereas her then counsel had identified with clarity and precision that there was a single protected act and what it was, the Clamant was reverting to a more generalised, non-specific statement of her protected acts. She was trying to present them as having occurred during the course of the Speak Up and grievance process without actually saying specifically what the protected acts were. Notably none of the documents the Claimant referred to in this application took matters materially further as regards specifically identifying a protected act.

[122]The application was refused with the following reasons.

[123]The application has no reasonable prospect of success and is refused pursuant to rule 71(1).

[124]The Respondents set out the essential basis of the application to strike-out the victimisation claim in counsel’s opening note. On day 1, as set out above, there was a discussion of the victimisation claim and the protected act relied upon was identified with particularity by the Claimant’s counsel in her presence. The Respondents immediately made their position clear, that this was the first they had heard of this protected act and that the strike-out application would be pursued. This was also in the Claimant’s presence. The tribunal made clear that if it would be the Claimant’s case that she had previously raised the protected act now relied upon whether in pleadings or otherwise, then she should come ready to point to that on day 2.

[125]It was agreed that the application to strike-out would be heard at 2pm on day 2.

[126]We do not know what was said privately between the Claimant and her counsel about proceeding on the afternoon of day 2. However, what we do know is what the Claimant’s counsel told us: that the Claimant was running late but that he had instructions to proceed in her absence.

[127]The Claimant’s recollection of the events of the afternoon of day 2 is materially wrong in places. What in fact happened is this.

[128]Just after 14.00 the rule 50 application was heard first (we heard from both sides). Ms Bell then started making the application to strike-out at 14.43. She was still speaking when the Claimant arrived at 15.03. Upon the Claimant’s arrival Judge Dyal welcomed her to the room and said he would not summarise what had been said that afternoon but words to the effect that her counsel no doubt could afterwards. Ms Bell continued with her submissions in the Claimant’s presence. After the Claimant arrived Ms Bell made the following particular submission in relation to the protected act: that the tribunal would have the account of one person of a two person conversation and the Respondents would not be able to challenge that evidence which was not even in the Claimant’s witness statement. Ms Bell then made submissions on why it was proportionate to strike out.

[129]At that point Mr Maini-Thompson asked for a break to take instructions which the tribunal agreed to. He asked for 5 minutes but in fact we broke from 15.11 to 15.20. We did not rush the parties to return we simply resumed when they did. On returning, Mr Maini-Thompson made submissions in response to the strikeout application in the Claimant’s presence.

[130]Counsel’s response included addressing the issue of whether the Claimant had or had not previously specified the protected act that is now relied upon (and we note that on day 1 we had asked him to come prepared to deal with this). Mr Maini-Thompson acknowledged that the Claimant’s note at p411 did not cover the matter and on her instructions explained why it did not. Essentially, she said, it was not on her mind that day. He said, again on the Claimant’s instructions, that she had raised the speak-up with Ms Denman in September or October 2018. However, he did not go so far as to say that the specific point now relied upon as the protected act was raised with Ms Denman.

[131]With that background in mind, there is no basis for reconsidering the striking out of the victimisation claim: 131.1. There was no application to delay the start of the hearing on day 2. The tribunal was entitled to proceed to hear the application to strike-out in the Claimant’s absence in light of her counsel volunteering that he had instructions to proceed in the Claimant’s absence. Further there was no request to delay the start of the hearing. 131.2. The Claimant was properly represented by counsel throughout the application. 131.3. In any event, the essence of the application to strike-out was very simple and it was foreshadowed clearly on day 1. 131.4. The Claimant was present for the latter part of Ms Bell’s submissions on day 2, which included the kernel of her application, namely that the Claimant was taking a new point that turned on an oral conversation that the Respondents did not have prior notice of or a fair opportunity to deal with; 131.5. A break was taken before the Claimant’s counsel responded to the application, in order for him to take instructions from the Claimant (this was at his request); 131.6. The Claimant was also present for her counsel’s response. He dealt with the factual (and all other) aspects of the application and was obviously relaying her instructions when he did so. 131.7. Even now the Claimant has not said anything or produced any document that alters the analysis.

[132]The application for reconsideration has no reasonable prospect of success and is refused. Renewed rule 50 application

[133]The Claimant made a renewed application for a rule 50 order just before 1pm on day 6. Her focus was on the medical information that she had provided in the course of the hearing particularly the information about having problems. Judge Dyal asked the Claimant to explain why she said it would be harmful to her interests for this information to be referred to openly. The tribunal gave the Claimant until 2pm to think about that matter.

[134]At 2pm the Claimant wanted to defer addressing the matter to a later unspecified time. However, the tribunal were not content to leave the matter hanging. The Claimant then addressed the tribunal at some length and she did so ably and cogently. In essence: 134.1. She is a very private person; 134.2. She has had to say very private information in front of strangers; 134.3. She wants the medical information to remain outside of the public domain; 134.4. She is concerned that the information could be held against her. The issues are under investigation and she does not even know what they are yet. 134.5. If the issues went on the internet and could be searched for, they could lead to stigmatisation (our word to capture the essence of the Claimant’s submission.)

[135]The Respondent was neutral.

[136]It seemed to us that in one respect matters had moved on since the Claimant’s previous rule 50 application. The Claimant has disclosed issues that are, taken at face value,

[137]It is currently unclear what is causing the issues that are reported. As yet there is no diagnosis and there is no prognosis. The matter is under investigation.

[138]Most importantly, the nature of the is such that they are, in our view, especially personal and have significant scope for being stigmatising.

[139]We are satisfied that the Claimant’s article 8 rights are engaged.

[140]In our view there is a sufficient basis for a derogation from the principle of open justice but only a very small one. Anything more would not strike the right balance between article 8 and open justice/article 10. 140.1. The existence of the can be protected from widespread publicity by redacting references to them in any document that goes on the Register or forms part of the public record and by making an order restricting the reporting of them. 140.2. This would not make them wholly private since they would still be referred to in the proceedings which are open to members of the public to attend if they so wish (though they have not to date). If members of the public did learn of the issues the order restricting publication would apply and would restrict further publicity. 140.3. If this approach is taken the derogations from open justice would be reasonably effective in protecting against widespread publicity of the issues but at very little cost to open justice. 140.4. The issues are not a feature of the substantive claim. As at today, it seems their relevance is limited to the conduct of the litigation rather than the underlying claim. Thus the imposition on open justice is more minor than it would be if the ssues were features of the substantive claim.

[143]In our view it would not strike the correct balance between the Claimant’s article 8 rights and open justice/article 10 to make any heavier privacy order, for instance for the names of the parties to be anonymised or for the proceedings to be held in private. Such measures would be major derogations from the principle of open justice which cannot be justified by the limited harm to the Claimant’s article 8 rights identified.

[144]Finally, we make clear that the issues are of a completely different kind and order to the other medical problems that the Claimant has reported. Those are nothing like as personal and do not have the same potential for stigmatisation. In relation to them we see no reason to take any different view than that expressed on day 3.

Findings of fact

[145]On 10 September 2018, Mr Wadey emailed the Claimant. This was in response to an email she had sent to him on 22 August 2018, complaining that despite what he had assured her, her role was 100% Change Control. He stated: The job descriptions of the Strategy and Risk team members are generic, so individuals may get involved in a number of areas of work if they have time and the skillset, I would not have been in a position at any point to accurately indicate what percentage of time you would spend in the area you have been deployed. Additionally work task assignment is up to local line management as they manage demand in their teams. As I understand, to date, you have been involved in learning the Change Control process and subsequent to this, you have been out of the office or unable to execute work that involved emails or extensive mouse use due to injuries. I understand a large amount of time has been spent working to deploy the Dragon tool in order to allow you to return to Change Control tasks and allow you to finish your training in this process. With regards other areas of work you have mentioned, in the 16 months since you joined the Corporate risk team, there have been changes in demand and approach for work for the Strategy and Risk team. IBM is now largely undertaken by the service in Poznan (a transition which was planned prior to your joining the team and which was in progress at the time you joined) and GSK's Sox testing has significantly changed since Deloitte became our auditors and requires expert testers (this task alone would not, in any event, be appropriate to be performed by someone of your grade). Opportunities to work on these types of activities have moved and they would likely no longer be available to you.

[146]On 11 September 2018, the Claimant emailed Mr Ball and Miss Wilson effectively asking for alternative work. She suggested in particular RPA/Robotics and Smart Controls.

[147]Mr Ball responded that he was not aware of any permanent vacancies.

[148]Ms Wilson responded: 148.1. In relation to RPA/Robotics: we are using our project aligned resources for this work. As key part of this work involves the Change Control process of which you are currently not able to execute. 148.2. In relation to Smart Controls: this work is being led by Vx and the ITMS team . There is no involvement from my wider team and no roles are available.

[149]The Claimant and Miss Wilson also had a face to face conversation. The Claimant’s case is that Miss Wilson said to her that she had been “out of office for a long time, you cannot send emails or do any Change Control work because of extensive mouse use”. We think this is likely as it is consistent Mr Wadey’s email above.

[150]The Claimant says that she “told Miss Wilson that she could do Change Control if it was not 100% of her role. And told Miss Wilson that the software did work to perform Change Controls.” We do not accept she did either of those things. They are not apparent in the Claimant’s account of the meeting which she gave in an email on 29 October 2018 and they are points that are of such significance that we think the Claimant would have put them in writing (whether in her email of 29 October 2018 or otherwise). LTIH resumed

[151]On 30 October 2018, the speak up of 17 August 2018 outcome was given. The speak up was not upheld. Essentially, the Claimant had failed to provide the information and documentation required to progress matters despite having multiple opportunities to do so. When she eventually provided some documentation it was incomplete. The Claimant also did not give the investigator, Ms Denman, permission to speak with Mr Ball by the deadline for doing so.

[152]On 16 November 2018, Mr Ball wrote to the Claimant and invited her to a reschedueled LTIH meeting on 21 November 2018. The meeting was postponed to 30 November 2018.

[153]On 30 November 2018, the meeting went ahead. Ms Backhouse and Mr Lord joined remotely. The Claimant’s focus at the meeting was on whether or not the letter of 16 November 2018 was accurate and essentially this is all she would discuss.

[154]The Claimant says that at some point Mr Ball suddenly leaped out of his chair and leaned over with his right arm and hand stretched out over the table and that he pointed his finger at her. On the Claimant’s account this was an aggressive act on Mr Ball’s part. We accept that this is how the Claimant’s perceived matters but we do not accept that Mr Ball was in fact physically aggressive towards her. On balance, we think it is implausible he would have done this particularly with HR and Mr Lord in earshot (i.e. attendance at the meeting by telephone). It is likely that in the heightened state of anxiety the Claimant was in that she perceived benign movements on Mr Ball’s parts to be aggressive.

[155]In December 2018, Mr Ball conducted the Claimant’s PDP review. Suffice to say there was broad disagreement between them.

[156]It is the Claimant’s case that in December and January 2019 she asked Mr Ball to let her do some Change Control tasks but that this was refused. We do not accept that is quite what she said. However, we do accept that she ask Mr Ball to do alternative roles and to see how much Change Control work was required. In particular she was interested in supporting projects and she was keen to shadow somebody for experience. Mr Ball refused this. He said that those supporting projects needed strong Change Control skills. He said that he had given the Claimant ample opportunity to show that Dragon was a solution but she had not. And he reminded her that in February 2018 when she had conducted just a few Change Controls her symptoms had returned.

[157]On 2 January 2019, the speak up of 13 August 2019 was closed essentially as a result of a lack of engagement from the Claimant.

[158]A further LTIH meeting took place on 8 January 2019. The meeting continue on 18 January 2019. Again on both occasions the Claimant dominated the meetings and did so with an unrelenting focus on what she believed were inaccuracies in the invitation to the meeting.

[159]After the meeting on 18 January 2019, Mr Ball asked the Claimant to organise her criticism of the invitation letter in tabular form. The left column to identify the line number of the letter (he provided a further draft of the letter with line numbers), the middle column to identify her point and the right column to identify supporting evidence. The Claimant did not do this and has offered a number explanations: 159.1. In cross-examination her first explanation was that to do so would have involved too much cutting and pasting from the letter into the proposed table. This did not really make sense since, if that had been uncomfortable, she could simply have typed rather than cut and paste, or cut and paste using the keyboard rather than the mouse. In any event, she had been given a version of the letter with line number so she could simply have input line number rather than copying or typing out extensive passages from the letter. 159.2. Later in cross-examination her explanation was that she had already marked up the letter and wanted to make her points her way rather than spending time doing it Mr Ball’s way. 159.3. On 4 February 2019, by email the Claimant declined Mr Ball’s method and said she wanted to continue going through the letter at the meetings, with Mr Ball stating what points she made he now agreed with and which he did not, and then discussing further the latter.

[160]It is plain that the Claimant’s approach was very unhelpful in progressing matters and that she was refusing to follow a reasonable approach that her manager was asking her too. This followed no fewer than three meetings at which the principal topic had been her complaints about the accuracy of the letter of 16 November 2018.

[161]On 30 January 2019, the Claimant raised a grievance. It had numerous limbs. Limb 3 was essentially the same issue as raised in the 13 August 2018 speak-up and accordingly that speak-up was reopened. The investigation was split in two with limb 3 dealt with in-house (by Trevor Dickey) and the remainder dealt with by an external investigator.

[162]On 5 February 2019, Mr Ball emailed C and among other things said: It is important to keep in mind the purpose of our meeting which is set out fully at the end of my letter. The following key points are central to the decision I need to make on whether it is appropriate for GSK to initiate its redeployment process: i. Whether it is feasible for you to continue in your role given that you say you are unable to perform Change Control Tasks; ii. The adjustments which have been made and their effectiveness (or not) in allowing you to perform the full remit of your role and in particular Change Control Tasks; iii. Any further adjustments that could reasonably be made which might enable you to carry out Change Control Tasks; iv. The business need for you to carry out Change Control Tasks; v. The current availability of any other roles that you might have the skills to perform; vi. The duties that you would perform during any period of redeployment.

[163]Mr Lord emailed the Claimant asking her to focus on these points.

[164]The LTIH meeting resumed again on 11 February 2019. It continued for a fifth time on 18 February 2019. At this meeting there was the following exchange: JB does dragon speak work yes or no? AH will answer that at the next meeting need to look at whole thing was not just the software what is required and have already been discussed will share ref the specifics is just to take time out and come back with OH piece.

[165]In our view this exchange again serves to show that Dragon was not a solution and that the Claimant was avoiding giving a straight answer.

[166]On 26 February 2019, the Claimant was invited to a grievance meeting with an external investigator on 5 March 2019.

[167]On 27 February 2019, the sixth LTIH meeting took place.

[168]On 5 March 2019, there was a grievance meeting.

[169]On 2 April 2019, the Claimant sent in further information about her grievance.

[170]The LTIH meeting went ahead on 4 April 2019 and proved to be the final one.

[171]The Claimant had three meetings with Mr Mundy (the external grievance investigator). Along the way she lost confidence in him because she thought he was not handling her data correctly (e.g. he put the password for a password protected document in the same email that the document was attached to).

[172]Mr Munday produced an investigation report on 13 June 2018.

[173]A grievance hearing took place with Mr Ian Culliford on 1 and 8 August 2019. The outcome was given by letter of 24 September 2019 rejecting the grievance (save for limb 3 which Mr Dickey was dealing with).

[174]On 5 August 2019, the Claimant was emailed Trevor Dickey’s findings in respect of limb 3 of the grievance and the speak-up of 13 August 2018. He rejected the complaint.

[175]On 14 October 2019, Ms Backhouse invited the Claimant, Mr Ball and Mr Lord to a further LTIH meeting. The Claimant indicated she would not attend essentially because she wanted to work on her grievance appeal all day. The Claimant appealed the grievance outcome on 15 October 2019.

[176]On 15 October 2019, Mr Ball gave the Claimant a letter setting out his “preliminary decision”. He found that the Claimant was not fit for her existing role and that there were no further adjustments that could be made. He then said this: I previously indicated that, if I reached this conclusion then, for a period of 12 weeks you could look for a suitable alternative role within the business (this period would not have created a role for you if one was not available and if the work did not need to be done). I also previously indicated that if, after the 12 week period, no alternative role could be found then it may be necessary to issue you with notice of the termination of your employment and you would be paid for your 12 week notice period. I have reflected on this and concluded that it would not be worthwhile to spend a further 12 weeks considering whether there is an alternative role for you. No suitable alternative roles have arisen during that period and, having given it careful thought, it is clear to me that it is highly unlikely that any roles would arise in a further 12 week period. I have also given consideration to whether it is appropriate for us to meet again given that we have not met since February. However, I have concluded that the positon has not changed over that period, your ability to comment in writing on this letter is sufficient and a further meeting is not warranted.

[177]The Claimant provided comments on the letter of 15 October 2019, disputing its accuracy in various respects. There was a strong focus on being considered for other roles generally and in particular roles that did not involve so much Change Control.

[178]The Claimant was given notice of dismissal by letter of 4 December 2019. The letter was given to her in a meeting that day. At the meeting Mr Ball told her that her access to the Respondent’s IT systems would be cut of immediately and that she would be escorted out of the building.

[179]Clearly this was heavy handed for an employee who was being dismissed at least ostensibly for long-term ill-health. Mr Ball evidence was that he was concerned that the Claimant may be a risk to the business as she had access to a lot of business data. He did not think she was a high-risk but a risk nonetheless. We accept this was his view at the time.

[180]In the course of the meeting, the Claimant raised concerns about being cut-off from IT access since she needed the access among other things to appeal, to gather her personal data and for redeployment purposes. Eventually, Ms Backhouse intervened and said that her access would not be immediately cut off.

[181]However, two days later (a Friday), Mr Ball saw the Claimant on Skype messenger and asked her what she was doing. She went offline. This triggered him and he arranged for her access to be immediately cut off.

[182]Returning to the letter of dismissal, it stated that notice would be served while on garden leave, ending on 4 March 2020. The letter made clear that no further time would be spent considering whether there was any alternative role. It also stated that the Claimant should not contact anyone at GSK.

[183]Ms Backhouse later told the Claimant that she was permitted to make contact for the purpose of finding alternative employment.

[184]However, as a result of having her systems access cut off, the Claimant did not have access to the internal job vacancies database. She was instead sent a link to the careers section of the Respondent’s general website. The Claimant’s evidence was that “in dismissing me and putting me on garden leave with immediate effect, JB denied me the opportunity to apply for roles that came up within the company which would not be externally advertised.” Ms Austen said that there was a way of accessing internal vacancies with additional login details but did not know whether C had been sent them. We find that the Claimant was not sent these additional login details and we find that on the basis of the passage of the Claimant’s statement just quoted.

[185]On the Monday 9 December 2019, the Claimant attended the workplace having arranged to do so to gather data, only to find that her access had been cut off. Mr Ball then took steps to reinstate her access but this was delayed by a mix up on his part. The access was restored at 2pm and then cut-off again at 4pm. The Claimant returned the following day to be told at reception that she was not allowed in. This was at Mr Ball’s instruction. Mr Ball explained this by saying he thought the Claimant’s access to the site should be limited because he was concerned there may be a risk to GSK’s systems.

[186]The Claimant appealed against her dismissal. The grounds of appeal included this comment: With regard to Dragon Speak software, I have not been in a position to properly test the efficiency of the software. I note James states that there are issues with the software, these have been resolved and we have not tested or trialled this properly after a period of training in order to help us to make an assessment whether there are any new issues which may impact my efficiency or accuracy.

[187]This again, in our view, shows that the Claimant’s evidence to the tribunal that Dragon was working and that she told Mr Ball this, was not correct.

[188]On 27 February 2020, the Respondent invited the Claimant to an appeal hearing to take place on 2 March 2020. It was a hearing to deal both with the appeal against the grievance outcome and the appeal against dismissal. The meeting did not go ahead partly because of personal reasons in C’s life and partly because Mr Lord was not available.

[189]There was a significant back and forth trying to arrange mutually convenient dates and a dispute also emerged over whether the appeal against the grievance outcome should be heard on the same occasion as the appeal against dismissal.

[190]In late March, Ms Austen, attempted to schedule the appeal hearing several times, with no response. It transpired that there had been a bereavement in the Claimant’s family. In May 2020, Ms Austen tried again to schedule the appeals. The Claimant did not further respond. No appeals therefore took place. Alternative work

[191]A good deal of evidence has been heard about alternative roles and employment, so much so that it is convenient to deal with it in its own section here so as not to disturb the broadly chronological telling of the story above.

[192]To begin with, we fully accept the Claimant’s evidence that the business culture at the Respondent was such that not all roles and opportunities were filled through formal open recruitment. On the contrary, very many roles, projects, secondments and opportunities that were routinely assigned informally.

[193]At the highest level of generality we also accept the Claimant’s evidence that a very wide range of the colleagues in her team and the teams around her were given roles and opportunities of various kinds during the part of the chronology in which she was trying to secure an alternative roles (c. late 2017 to dismissal).

[194]The list of issues identifies a number of specific roles. It does this in a slightly confusing way in that they are identified at 11.4 by reference to the annex to Claimant’s further and better particulars. They are then identified again under reasonable adjustments but there is not a complete overlap in the roles identified. Yet further, the Claimant applied for two alternative roles after being told a ‘preliminary’ decision had been made to dismiss her/in her notice period and these are not explicitly referenced in the list of issues but are undoubtedly features of the claim. A role in GDPR

[195]In 2017, the Respondent was preparing for the coming into force of GDPR. In essence the Respondent was analysing the applications it used that contained personal information to ensure that it would be compliance with GDPR when it came into effect.

[196]On the tech side, the project was being let by an employee in Kuala Lumpur, Mr Pochet. In November 2017, the Claimant asked Mr Ball if she could become involved in this GDPR work. At the time, the QRC aligned person was a colleague, Alex Choong. He was also based in Kuala Lumpur. This work was outside of Mr Ball’s remit so he raised the matter with Ms Wilson.

[197]Ms Wilson decided that there was no opportunity for the Claimant in respect of this work. By the time the Clamant had made this request, Mr Choong was well established in the role. He had had external training on GDPR and was regarded as a subject matter expert. The project was also a development opportunity for him and she was keen to ensure that a remote colleague was not overlooked for the same. And there was no business need to assign the work to the Claimant rather than Mr Choong. It was also convenient for him to be co-located with the tech leader. Another colleague, Maureen Mora who was based in Costa Rica was also at this time supporting the project. She was also regarded as a subject matter expert.

[198]The project was time limited and came to end, according to the Claimant’s evidence which we accept, at the end of 2018. DCMS: February to December 201[8]

[199]There appears to be a typographical error in the further and better particulars, and we understand the relevant year to be 2018 rather than 2019 as drafted. The information in the Annex to the Further Particulars, does not identify any opportunity in DMCS that the Claimant says she was not given. Rather, it identifies that she was given this alternative work and says in effect she did a good job.

[200]We accept the Claimant performed this work well and diligently. However, it was work that was two grades below her on the grade-scale and Mr Ball was only prepared for her to do it on a time limited basis. The roles in the CDMS team, were all, save for the manager’s role which was occupied, at two grades below the Claimant. Smart Control opportunities: April 2018; September 2018; April 2019 and May 2019

[201]Smart Control was a new tool that was developed and introduced to assist with compliance determination assessments. It was not a job or a role as such, it was simply a new application that replaced two previous applications.

[202]We accept Mr Ball’s evidence that smart controls are essentially a list of questions that allow an application owner to determine what requirements (aka Controls) need to be considered in order to provide assurance that the application is fit for purpose.

[203]Smart Control was developed in-house and thus one aspect of work related to Smart Control was coding, i.e., the actual creation of the application. This required coding skills. The Claimant did not have coding skills. However, that was not the only aspect of work related to Smart Control. The application also needed to be tested and developed and then used. Coding skills were not required for that. A wide range of the Claimant’s colleagues were involved.

[204]We find that in physical/mechanical terms using the Smart Control application was, at least without adjustments, a fairly mouse intensive activity. For instance, it was necessary to make selections from a large number of drop down boxes, and then to review the controls created (of which there could 60 – 120), review spreadsheets and verify results appending evidence.

[205]On 17 April 2018, the Claimant emailed Ms Wilson inquiring about Smart Control expressing an interest in it having been to a presentation and asking if she could support the activity. Ms Wilson responded that there was unlikely to be any work for the Claimant. She said “the LT has already designed the controls and the tool and the ITMS team will deliver any relevant changes. in the future controls will not reside in the SOPs”.

[206]In September 2018, the Claimant again raised the issue of supporting Smart Control work. She did this orally with Mr Ball and then by email of 10 September to Mr Ball and Ms Wilson.

[207]In essence she was told that there were not opportunities for her. In her email the Claimant said: “Smart Controls - due to Smart Controls being implemented we need to review our IBMs and SOPs. Hence, proposing to support this activity.” Ms Wilson responded “This work is being led by Vx and the ITMS team. There is no involvement from my wider team and no roles are available.”

[208]In cross-examination both Mr Ball and Ms Wilson accepted that members of their teams were involved in Smart Controls. However, Ms Wilson stood by what she said in her email on the basis that it while it true that individuals in Mr Ball’s and her team used the tool as part of their job, the work the Claimant had described in her email (review IBMs and SOPs) sat with the Vaccine team (Vx) and the IT management system team (based in Poland) neither or which were part of her team. So the information she gave was technically correct albeit that it did not describe the totality of smart control related activity.

[209]A number of emails in the bundle show that colleagues, Hannah, Van and Sonia, were working on smart controls. Ms Wilson acknowledged that this is what the emails suggested but she did not know what they were doing. Mr Ball’s evidence was essentially that there were development opportunities for Hannah (an apprentice – so given a wide range of experience) and Van (wanted to move beyond document control). He could not recall the reason why Sonia had been given some opportunity in Smart Control or what the opportunity it was, but if there was evidence in the bundle that she had been, then he accepted that. There are indeed emails in the bundle that suggest Sonia was involved in Smart Control work.

[210]Drawing the evidential strands together and trying to make some sense of it, we find that: 210.1. There was some smart control work which required specialist coding skills that the Claimant did not have; 210.2. There was some smart control work that went to other teams that were not in Mr Ball’s and Ms Wilson’s control; 210.3. There was a lot of other work related to smart control carried out by members of Mr Balls’ and Ms Wilson’s teams by employees who were not coders and had a range of seniorities and skills. This included Alex, Maureen, Hannah, Van and Sonia who had been given Smart Control related duties after the Claimant had been told there were no opportunities for her; 210.4. The Claimant had too painstakingly eke out details in cross-examination. It showed that the Respondents had not given fully candid accounts. RPA/robotics: September 2018

[211]In her email of 11 September 2018, the Claimant asked for work in this field. Ms Wilson responded that “we are using our project aligned resources for this work. As a key part of this work involves the Change Control process of which you are currently not able to execute.”. At this time, Mr Ball said simply that there were no permanent vacancies. He later also said in an email on 10 December 2018, that he had brought two contingent workers into the RPA space because they had niche skills.

[212]The Claimant does not accept that this work required specialist skills in robotics. This is based on a conversation she had with one of the people doing the role. We can accept that is what she was told. However, we accept the Respondents’ evidence that this was a specialist area in which experience and skills in robotics was needed and that is why the contingent workers Mr Ball recruited were selected because they had those niche skills. We also accept that carrying out Change Controls was a key part of this role in any event. IT/Quality Project Manager: December 2018/January 2019

[213]The Claimant did make requests to shadow a colleague carrying out such a role as set out in our findings above. Mr Ball refused this request, in essence because a core part of the IT/Quality Project Manager role involving doing Change Control. We accept his evidence that at times it would be 20 – 30 % of the role but at other times a greater percentage. Permanent role as service manager in wider team given to CW (issue 22.1.3)

[214]Despite the reference to a ‘CW’ in the characterisation of the issues, the evidence and argument in the case focussed on a role that came up in Colin Jones’ team that was ultimately filled by Mr Ali.

[215]The Respondents’ case is that this role was essentially the same as the Claimant’s in that the key component was doing Change Controls. The Claimant did not accept this on the basis that from her past experience service managers did not simply do Change Controls. Ms Wilson was asked about this role in her evidence. Her evidence was the role was in fact IT Quality manager role not a service manager role but in any event, whatever the title, it involved a lot of Change Control activity. It could be 20 – 30% at times but at others 50 – 60%. We prefer Ms Wilson’s evidence. She was in our view in the better position to speak with authority about what this role was and what it comprised.

[216]We also accept Ms Wilson’s evidence that the type of Change Control that this job required, supporting on a projects, was more advanced than the ones the Claimant had experience of and that the Claimant needed to continue building Change Control competence before moving on. Roles outside of team

[217]In around November 2019 (after the “preliminary” decision to dismiss), the Claimant applied for a role as a Project Manager in another section of the business. Mr Westwood, was the recruiting manager. He emailed Mr Ball on 29 November 2019 asking for some ‘initial feedback’. Mr Ball then spoke to Mr Westwood.

[218]The Claimant’s application was not progressed and she did not get an interview. She believes that Mr Ball spoke negatively about her and put the recruiting manager off. Mr Ball denied this and said he had told the recruiting manager that he could not comment on the role because the role in his team was quality management whereas this was a project management role; but that he noted the claimant and service and project management on her CV.

[219]We found Mr Ball’s account of the call rather implausible. The request was for initial feedback and we think it overwhelmingly likely that the conversation would have included a discussion of the merits of the Claimant as an employee. By this stage in the chronology, Mr Ball had made a “preliminary” decision to dismiss the Claimant and in our view did have a negative opinion of her. Her period of employment in his team had not gone well and he had found her very difficult to manage. We think it is likely that he did give Mr Westwood a negative feedback about the Claimant.

[220]The Claimant also applied for a role in the data privacy team. Mr Xavier Jean was the recruiting manager. This application appears to have been during her notice period. The Claimant was shortlisted and interviewed.

[221]The Claimant says she had positive feedback from the interviewers and was told that she would hear back in respect of the role before the end of week. We accept her evidence. She did not hear back until she followed up and was told she had not been selected.

[222]The Claimant believes that Mr Ball spoke to the recruiting manager and gave negative feedback about her. Mr Ball denies this. He accepted in crossexamination that he knew Mr Jean, and indeed, Mr Jean had once been his manager. However, his evidence was that he was not even aware that the Claimant had applied for this role and that he had not given any feedback in respect of the Claimant in relation to it.

[223]We have found this a difficult matter to resolve. However, we ultimately think it is more likely than not that Mr Ball was asked for feedback in respect of the Claimant and her application for this job and that he provided negative feedback to like effect as above. We find this because it is plain that this was a business in which there was an accepted culture of reaching out to the existing manager of an employee for a view when an employee sought an alternative role internally. It therefore seems likely that this happened. We have little doubt that when privately asked Mr Ball would have given his candid view, namely that the Claimant’s employment with him had been unsuccessful and that he had found her difficult to manage.

[224]The Respondent has no disclosure documents in respect of this job application. As a matter of course, recruitment documents are kept for only 12 months and then destroyed. Of course where documents are relevant to litigation they need to be preserved. The Respondent says that they were not in this case because the Claimant made the application from her personal email account and thus that the relevant people tasked with preserving documents for litigation were unaware of it.

[225]Considering the matter in the round, it seems to us that the Respondent could and should have done a better job of preserving the documents in respect of the Claimant’s application for this role. However, we do not accept that the documents were either deliberately suppressed or destroyed with a view to improving the Respondents’ position in litigation. In our view the more likely explanation is simply that there was an oversight: an innocent failure to appreciate that the documents should be preserved.

[226]We would have taken the same view even if we had admitted the email sent by the Claimant to the tribunal on 24 November 2023, appearing to show that the Respondent sent an email to her GSK account in January 2020 regarding what appears to be this role.

Law

[227]By s.94 Employment Rights Act 1996 there is a right not to be unfairly dismissed. That includes a right not be unfairly constructively dismissed (s. 95(1)(c) ERA).

[228]There is a limited range of potentially fair reasons for dismissal (s.98 Employment Rights Act 1996).

[229]The ‘reason’ for dismissal is the factor operating on the decision-maker’s mind which causes him/her to take the dismissal decision (Croydon Health Services NHS Trust v Beatt

[2017] ICR 1420

). In some circumstances, the net could be cast wider such as where the facts known to, or beliefs held by, the decisionmaker have been manipulated by another person (Royal Mail Ltd v Jhuti

[2019] UKSC 5

[230]Capability for performing work of the kind which he was employed by the employer to do is a potentially fair reason (s.98(2)).

[231]Where there is a potentially fair reason for a dismissal, the fairness of the dismissal is assessed by applying the test at s.98 (4) ERA. The burden of proof is neutral. Section 98 (4) says: (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

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

[232]The range of reasonable responses test applies to all aspects of dismissal. In Sainsbury’s v Hitt

[2003] IRLR 23

, the Court of Appeal emphasised the importance of that test and that it applies to all aspects of dismissal, including the procedure adopted.

[233]In Spencer v Paragon Wallpapers Ltd

[1976] IRLR 373

[1977] ICR 301

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

[234]In East Lindsey District Council v Daubney

[1977] IRLR 181

[1977] ICR 566

, a different division of the EAT said this: ''Unless there are wholly exceptional circumstances, before an employee is dismissed on the ground of ill health it is necessary that he should be consulted and the matter discussed with him, and that in one way or another steps should be taken by the employer to discover the true medical position. We do not propose to lay down detailed principles to be applied in such cases, for what will be necessary in one case may not be appropriate in another. But if in every case employers take such steps as are sensible according to the circumstances to consult the employee and to discuss the matter with him, and to inform themselves upon the true medical position, it will be found in practice that all that is necessary has been done. Discussions and consultation will often bring to light facts and circumstances of which the employers were unaware, and which will throw new light on the problem. Or the employee may wish to seek medical advice on his own account, which, brought to the notice of the employers' medical advisers, will cause them to change their opinion. There are many possibilities. Only one thing is certain, and that is that if the employee is not consulted, and given an opportunity to state his case, an injustice may be done'.'

[235]Sometimes a tribunal may feel that the medical position has been adequately established following consultation with the employee himself; in others the employer ought to consult doctors about the state of the employee's health, as (Patterson v Messrs Bracketts

[1977] IRLR 137

[236]In Merseyside and North Wales Electricity Board v Taylor

[1975] IRLR 60

[1975] ICR 185

the EAT said this: ''… when one comes to consider the circumstances of the case, as to whether they make it reasonable or unreasonable to act upon his incapacity and to dismiss him, it cannot be right that, in such circumstances, an employer can be called upon by the law to create a special job for an employee however long-serving he may have been. On the other hand, each case must depend upon its own facts. The circumstances may well be such that the employer may have available light work of the kind which it is within the capacity of the employee to do, and the circumstances may make it fair to at least encourage him or to offer him the chance of doing that work, even if it be at a reduced rate of pay.” Direct discrimination

[237]Section 13 EqA provides: “A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[238]Section 23 EqA provides:(1) On a comparison of cases for the purposes of section 13…there must be no material difference between the circumstances relating to each case.

(2) The circumstances relating to a case include each person’s abilities if – on a comparison for the purposes of section 13, the protected characteristic is disability…

[239]In Nagarajan v London Regional Transport

[1999] IRLR 572

, the House of Lords held that if the protected characteristic had a ‘significant influence’ on the outcome, discrimination would be made out. The crucial question in every case is, ‘why the complainant received less favourable treatment…Was it on the grounds of [the protected characteristic]? Or was it for some other reason..?’.

[240]In Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

at [11-12], Lord Nicholls: ‘[…] employment Tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the Claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the Claimant on the proscribed ground, was less favourable than was or would have been afforded to others. The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions employment Tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the Claimant […]’

[241]Since Shamoon, the appellate courts have broadly encouraged Tribunals to address both stages of the statutory test by considering the single ‘reason why’ question: was it on the proscribed ground, or was it for some other reason? Underhill J summarised this line of authority in Martin v Devonshire’s Solicitors

[2011] ICR 352

at [30]: ‘Elias J (President) in Islington London Borough Council v Ladele (Liberty intervening)

[2009] ICR 387

developed this point, describing the purpose of considering the hypothetical or actual treatment of comparators as essentially evidential, and indeed doubting the value of the exercise for that purpose in most cases-see at paras 35–37. Other cases in this Tribunal have repeated these messages- see, e.g., D'Silva v NATFHE

[2008] IRLR 412

, para 30 and City of Edinburgh v Dickson (unreported), 2 December 2009 , para 37; though there seems so far to have been little impact on the hold that “the hypothetical comparator” appears to have on the imaginations of practitioners and Tribunals.’

[242]The EHRC Employment Code says this on comparators in direct disability discrimination cases: 3.29 The comparator for direct disability discrimination is the same as for other types of direct discrimination. However, for disability, the relevant circumstances of the comparator and the disabled person, including their abilities, must not be materially different. An appropriate comparator will be a person who does not have the disabled person’s impairment but who has the same abilities or skills as the disabled person (regardless of whether those abilities or skills arise from the disability itself). 3.30 It is important to focus on those circumstances which are, in fact, relevant to the less favourable treatment. Although in some cases, certain abilities may be the result of the disability itself, these may not be relevant circumstances for comparison purposes. Example: A disabled man with arthritis who can type at 30 words per minute applies for an administrative job which includes typing, but is rejected on the grounds that his typing is too slow. The correct comparator in a claim for direct discrimination would be a person without arthritis who has the same typing speed with the same accuracy rate. In this case, the disabled man is unable to lift heavy weights, but this is not a requirement of the job he applied for. As it is not relevant to the circumstances, there is no need for him to identify a comparator who cannot lift heavy weights.

[243]In Aylott v Stockton on Tees

[2010] IRLR 994

, Mummery LJ said this: 39. The employment tribunal selected a hypothetical comparator. As the identity of the comparator for direct discrimination must focus upon a person who does not have the particular disability, that disability must, as directed in section 3A(5) , be omitted from the circumstances of the comparator. In other respects the circumstances of the claimant and of the comparator must be the same “or not materially different”. The claimant's abilities, as directed in section 3A(5) , must be attributed to the comparator. Although the comparator is not required to be a clone of the claimant, failure by the employment tribunal to attribute other relevant circumstances to the comparator may be an error of law on the part of the tribunal: see, for example, the judgment (Judge McMullen QC) in High Quality Lifestyles Ltd v Watts

[2006] IRLR 850

. However, as explained below, there is no obligation on the employment tribunal to construct a hypothetical comparator in every case and failure to do so does not necessarily lead to an error of law in the employment tribunal's findings.

[244]Where an employer makes inaccurate assumptions about mental illness that are not based on up to date medical evidence, but for instance upon stereotypes about mental illness, that is a matter that may infer directly discriminatory treatment: Aylott v Stockton on Tees

[2010] IRLR 994

. The same principles apply in the case of physical disabilities.

[245]In Owen v Amec Foster Wheeler Energy Ltd

[2019] ICR 1593

the Court of Appeal gave important guidance on direct discrimination in the particular context of disability. Mr Owen had multiple health issues and was denied an overseas posting because medical concerns were raised in an occupational health assessment. Mr Owen argued that the reason the employer did not allow him to be posted overseas was the outcome of his medical assessment and that this was indissociable from his disabilities. He argued that, regardless of any benign motive that Amec may have had, there was a necessary and inherent link between the reason Amec made the decision and his disabilities. The Court of Appeal rejected this argument – the hypothetical comparator was a person who was not disabled but who was also deemed to be a high medical risk. That person would have been treated in exactly the same way.

[246]The appeal considered the concept of indissociably and the case-law jurisprudence around that in the context of direct discrimination. That culminated with the following conclusion: 78. I would also accept the submission made by Ms Sen Gupta that, unlike racial or sex discrimination, the concept of disability is not a simple binary one. It is also not the case that a person’s health is always entirely irrelevant to their ability to do a job. For those reasons the concept of indissociability, which forms the foundation of much of Ms Genn’s submissions, cannot readily be translated to the context of disability discrimination. Reasonable adjustments

[247]Section 20(3) EQA 2010 provides: “…where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, [there is a requirement] to take such steps as it is reasonable to have to take to avoid the disadvantage.”

[248]“Substantial” is defined at section 212(1) EQA 2010 to mean “more than minor or trivial”.

[249]General guidance as to the overall approach to reasonable adjustments was given in Environment Agency v Rowan

[2008] ICR 218

: 249.1. The PCP must be identified; 249.2. The identity of the non-disabled comparators must be identified (where appropriate); 249.3. The nature and extent of the substantial disadvantage suffered by C must be identified; 249.4. The reasonableness of the adjustment claimed must be analysed.

[250]The reasonableness of an adjustment falls to be assessed objectively by the Tribunal (Morse v Wiltshire County Council

[1998] IRLR 352

[251]There is no requirement for there to be a good or a real prospect of an adjustment removing or mitigating the substantial disadvantage before it can be held to be one that the Respondent ought reasonably to have made. An adjustment may be a reasonable one to make even if there is merely a prospect of it removing or mitigating the substantial disadvantage (Leeds Teaching Hospital NHS Trust v Foster, unreported EAT

UKEAT/0552/10/JOJ

[252]In Griffiths v Secretary of State for Work and Pensions

[2017] ICR 160

Elias LJ said this at 170: “So far as efficacy is concerned, it may be that it is not clear whether the step proposed will be effective or not. It may still be reasonable to take the step notwithstanding that success is not guaranteed; the uncertainty is one of the factors to weigh up when assessing the question of reasonableness”.

[253]In Lincolnshire Police v Weaver

[2008] All ER (D) 291

(Mar), the EAT held that it is proper to examine the question not only from the perspective of a claimant, but that a tribunal must also take into account 'wider implications' including 'operational objectives' of the employer. Discrimination arising from disability

[254]Section 15 EQA 2010 provides as follows:(1) A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”

[255]In Pnaiser v NHS England

[2016] IRLR 170

the EAT gave the following guidance:(a) A tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises.

(b) The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s.15 case. The “something” that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.

(c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport

[1999] IRLR 572

. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises, contrary to Miss Jeram's submission (for example at paragraph 17 of her skeleton).

(d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is 'something arising in consequence of B's disability'. That expression 'arising in consequence of' could describe a range of causal links. Having regard to the legislative history of s.15 of the Act (described comprehensively by Elisabeth Laing J in Hall), the statutory purpose which appears from the wording of s.15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.

(e) For example, in Land Registry v Houghton

UKEAT/0149/14

[2015] All ER (D) 284

(Feb) a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact.

(f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.

(g) Miss Jeram argued that “a subjective approach infects the whole of section 15” by virtue of the requirement of knowledge in s.15(2) so that there must be, as she put it, “discriminatory motivation” and the alleged discriminator must know that the “something” that causes the treatment arises in consequence of disability. She relied on paragraphs 26–34 of Weerasinghe as supporting this approach, but in my judgment those paragraphs read properly do not support her submission, and indeed paragraph 34 highlights the difference between the two stages – the “because of” stage involving A's explanation for the treatment (and conscious or unconscious reasons for it) and the “something arising in consequence” stage involving consideration of whether (as a matter of fact rather than belief) the “something” was a consequence of the disability.

(h) Moreover, the statutory language of s.15(2) makes clear (as Miss Jeram accepts) that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the “something” leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover, the effect of s.15 would be substantially restricted on Miss Jeram's construction, and there would be little or no difference between a direct disability discrimination claim under s.13 and a discrimination arising from disability claim under s.15.

[256]In MacCulloch v ICI

[2008] IRLR 846

, Elias J (as he then was) set out four legal principles with regard to justification, which have since been approved by the Court of Appeal in Lockwood v DWP

[2014] ICR 1257

:(1) The burden of proof is on the respondent to establish justification….

(2) The classic test was set out in Bilka-Kaufhaus GmbH v Weber Von Hartz (case 170/84)

[1984] IRLR 317

in the context of indirect sex discrimination. The ECJ said that the court or tribunal must be satisfied that the measures must “correspond to a real need … are appropriate with a view to achieving the objectives pursued and are necessary to that end” (paragraph 36). This involves the application of the proportionality principle, which is the language used in reg. 3 itself. It has subsequently been emphasised that the reference to “necessary” means “reasonably necessary”: see Rainey v Greater Glasgow Health Board (HL)

[1987] IRLR 26

per Lord Keith of Kinkel at pp.30–31.

(3) The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it: Hardys & Hansons plc v Lax

[2005] IRLR 726

per Pill LJ at paragraphs [19]–[34], Thomas LJ at [54]–[55] and Gage LJ at [60].

(4) It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to make its own assessment of whether the former outweigh the latter. There is no “range of reasonable response” test in this context: Hardys & Hansons plc v Lax

[2005] IRLR 726

, CA.''

[257]Concrete evidence is not always required to prove justification (Lumsdon v Legal Services Board

[2015] UKSC 41

[258]When assessing proportionality, the tribunal must reach its own judgment, but it must be based on a fair and detailed analysis of the working practices and business considerations involved, having regard to the business needs of the employer (Hensman v Ministry of Defence

UKEAT/0067/14/DM

, [2014] EqLR 670; City of York Council v Grosset (

[2018] EWCA Civ 1105

[2018] IRLR 746

). The burden of proof and inferences

[259]The burden of proof provisions are contained in s.136(1)-(3) EqA:(1) This section applies to any proceedings relating to a contravention of this Act.

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

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

[260]In Igen Ltd & Others v Wong

[2005] IRLR 258

the Court of Appeal gave the enduring guidance on the burden of proof. Although that was a case brought under the Sex Discrimination Act 1975, it has equal application to all strands of discrimination under the EqA:(1) Pursuant to s.63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s.41 or s.42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as 'such facts'.

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

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

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

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

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

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

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

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

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

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

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

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

[261]In Madarassy v Nomura Bank

2007 ICR 867

, a case brought under the then Sex Discrimination Act 1975, Mummery LJ said: “The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (e.g. sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

[262]The position was summarised by Underhill LJ in Base Childrenswear Ltd v Otshudi

[2019] EWCA Civ 1648

at [18]: ‘It is unnecessary that I reproduce here the entirety of the guidance given by Mummery LJ in Madarassy. He explained the two stages of the process required by the statute as follows:(1) At the first stage the Claimant must prove “a prima facie case”. That does not, as he says at para. 56 of his judgment (p. 878H), mean simply proving “facts from which the Tribunal could conclude that the Respondent 'could have' committed an unlawful act of discrimination”. As he continued (pp. 878-9): “56. … The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal 'could conclude' that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination. 57. 'Could conclude' in section 63A(2) [of the Sex Discrimination Act 1975] must mean that 'a reasonable Tribunal could properly conclude' from all the evidence before it. …”

(2) If the Claimant proves a prima facie case the burden shifts to the Respondent to prove that he has not committed an act of unlawful discrimination – para. 58 (p. 879D). As Mummery LJ continues: “He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the Tribunal must uphold the discrimination claim.” He goes on to explain that it is legitimate to take into account at the first stage all evidence which is potentially relevant to the complaint of discrimination, save only the absence of an adequate explanation.’

[263]In Deman v Commission for Equality and Human Rights

[2010] EWCA Civ 1279

, Sedley LJ observed at [19]: ‘the “more” which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be furnished by a non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred.’

[264]In Hewage v Grampian Health Board

[2012] ICR 1054

at [32], the Supreme Court held that the burden of proof provisions require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the Tribunal is in a position to make positive findings on the evidence one way or the other.

[265]The Court of Appeal in Anya v University of Oxford

[2001] ICR 847

at [2, 9 and 11] held that, in a discrimination case, the employee is often faced with the difficulty of discharging the burden of proof in the absence of direct evidence on the issue of the causative link between the protected characteristics on which he relies and the discriminatory acts of which he complains. The Tribunal must avoid adopting a ‘fragmentary approach’ and must consider the direct oral and documentary evidence available and what inferences may be drawn from all the primary facts.

[266]It is not permissible to infer discrimination simply from unreasonable treatment. However, it can be permissible to infer discrimination from the failure to explain unreasonable treatment (Bahl v The Law Society

[2004] IRLR 799

[267]In Hewage v Grampian Health Board

[2012] ICR 1054

[268]In a complaint of failure to make reasonable adjustments the Claimant has the burden of proving that the PCP, physical feature or failure to provide auxiliary aid, would put him at a substantial disadvantage compared to others who are not disabled. The burden does not shift unless there is evidence of some apparently reasonable adjustment which could have been made. This does not necessarily mean providing the detailed adjustment but at the least requires the broad nature of the adjustment to be clear enough for the Respondent to understand and engage with it. See Project Management Institute v Latif

[2007] IRLR 579

. Time limits

[269]S.123(1)(a) EqA provides that: (1) [Subject to [sections 140A and 140B],] Proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. […] (3) For the purposes of this section-- (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something-- (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[270]The three-month time limit is paused during ACAS early conciliation: the period starting with the day after conciliation is initiated, and ending with the day of the ACAS certificate, does not count (s.140B(3) EqA). If the ordinary time limit would expire during the period beginning with the date on which the employee contacts ACAS, and ending one month after the day of the ACAS certificate, then the time limit is extended, so that it expires one month after the day of the ACAS certificate (s.140B(4) EqA).

[271]In Matuszowicz the CA held that s.3 of Sch.3 of the DDA 1995 provided that a deliberate omission was deemed to occur when it was decided upon and that a person can be taken to have decided upon that omission either(a) when he does an act inconsistent with the doing of the omitted act or

(b) after that period of time within which a reasonable person would have acted. Lord Justice Lloyd held that the effect of para 3(4) was to treat an inadvertent omission by the employer as an act that was done deliberately either when the employer had performed an act inconsistent with the omitted act or after that period of time within which a reasonable person would have acted. His Lordship also stated that since the allegation in Matuszowicz, concerned a continuing omission, the time limit was governed by paragraph 3 of Schedule 3. Lord Justice Sedley agreed with the judgment of Lord Justice Lloyd and stated that it was worth stressing that the effect of paragraph 3 of Schedule 3 “is to eliminate continuing omissions from the computation of time by deeming them to be acts committed at a notional moment.” Their Lordships therefore agreed that even where an act is a continuing omission the time limits were governed by paragraph 3.”

[272]In Abertawe the Court of Appeal essentially built upon the jurisprudence of Matuszowicz. It held as follows (this is extracted from the headnote, which in our view accurately captures the principles): section 123(4) of the Equality Act 2010 dealt only with the question of when time began to run for the purpose of calculating the time limit for bringing proceedings in relation to acts or omissions which extended over a period; that, in the case of omissions, the approach taken in section 123(4) was to establish a default rule that time began to run at the end of the period in which the employer might reasonably have been expected to comply with the relevant duty; that ascertaining when the employer might reasonably have been expected to comply with its duty was not the same as ascertaining when the duty to comply began; that pursuant to section 20(3) of the Act, the duty to comply with the relevant 2010 requirement began as soon as the employer was able to take steps which it was reasonable for it to have to take to avoid the relevant disadvantage; that, in contrast, the period in which the employer might reasonably have been expected to comply with its duty ought in principle to be assessed from the Claimant’s point of view, having regard to the facts known or which ought reasonably to have been known by the Claimant at the relevant time; and that, accordingly, there was no inconsistency between the tribunal’s finding that time did not begin to run for bringing the reasonable adjustments claim until August and its conclusion that the claim 1 2011 was well founded.

[273]S.123(1)(b) EqA provides that the Tribunal may extend the three-month limitation period, where it considers it just and equitable to do so. That is a very broad discretion. In exercising it, the Tribunal should have regard to all the relevant circumstances, which may include factors such as: the reason for the delay; whether the Claimant was aware of his right to claim and/or of the time limits; whether he acted promptly when he became aware of his rights; the conduct of the employer; the length of the extension sought; the extent to which the cogency of the evidence has been affected by the delay; and the balance of prejudice (Abertawe).

Discussion and conclusions

[274]Identifying the reason or principal reason for dismissal in this case is not a simple matter. The Respondent’s case is that the reason is capability. Ultimately we take the view that it is, but not without considerable analysis and pause for thought.

[275]The Respondents’ primary position is that they took the Claimant at face value with respect to her having an inability to carry out Change Controls without adaptations. We do not think this is the whole truth - it omits an important nuance. We are sure that Mr Ball and indeed Ms Wilson were sceptical of the Claimant’s position that she was unable to do Change Control without experiencing pain. In our view they had a suspicion that she may be using a medical issue to get something she wanted, namely, a different and more interesting job that did not involve any or at least as much Change Control (something more along the lines of what she had been promised by Mr Wadey).

[276]It is important to be clear what the suspicions arose out of. There was, in our view, a rational basis for them, and they were nothing to do with any sort of prejudice or stereotyping of people with disability/the Claimant’s particular disability. The main factors were these: 276.1. On coming to the role in the first place, the Claimant had gone out of her way to get assurances that her role would not be limited to Change Control; 276.2. There was nothing very special about the mechanics of doing Change Controls. It did involve using the mouse quite a lot, but in that respect it was a fairly ordinary computer based task and it was not obvious why the Claimant could do other tasks, or prospectively other roles (all of which were computer use heavy) without like problems; 276.3. The Claimant was slow to complete her training on Change Controls (albeit there was a partial excuse for this, essentially, IT problems); 276.4. The Claimant completed few Change Controls even before the pain issues arose; 276.5. The feedback on the Claimant even before the pain arose was that she was reluctant to make judgment calls in respect of Change Controls; 276.6. The Claimant gave pretty short shrift to adapting the Change Control task by having the Change Control form printed. She did not seem to like the idea when Mr Ball first suggested it. Further, while this way of working did not eliminate all mouse use, it did reduce it a lot in our view (though we appreciate the Claimant herself does not accept this). That made it even harder to understand how it was that the Claimant could not do Change Controls without pain but could do other computer based tasks. The Claimant reported that the pain had returned after doing just a few days of Change Controls in February 2018 and then only a few on each of those days. 276.7. It did take a surprisingly long time to bottom out whether or not Dragon would work. By no means was this entirely the Claimant’s fault at all. However, it frustrated her managers. Moreover, by the latter stages of that process (from around September 2018 onwards) she did simply fail to answer simple inquiries as to whether it worked as a solution or not. 276.8. The Claimant was seeking alternative work at an early stage. 276.9. Ms Wilson also knew that the Claimant came to the department having had “issues” with all of the other line managers in the area such that a role needed to be created for her.

[277]Mr Ball and Ms Wilson then, in our view, had a suspicion that the Claimant simply did not want to do Change Control and that that was at least a significant part of the Claimant’s motivations and had a reasonable evidential basis for this. That is essentially the case that the Respondents have run in this litigation - that the Claimant simply did not want to do Change Controls. They have done that while concurrently with not really going seeking to go behind the Claimant’s case that doing Change Controls caused her the symptoms she said.

[278]The fact was that in addition to her own account the Claimant had medical evidence (e.g. OH evidence) in support of her position. Because of that Mr Ball and Ms Wilson, managed the Claimant on the basis that she was unable to complete Change Controls to the extent required, at least without an adaptation that removed the repetitive computer work element. Thus the management route they decided to go down, assumed (despite their personal suspicions and scepticism) that the Claimant was incapable of completing Change Controls without unacceptable levels of pain. But, and it is an important ‘but’, we infer from the evidence, what they were not prepared to do was to allow the Claimant to use the difficulty with doing Change Controls to manoeuvre into a different role. This is well evidenced by the approach to redeployment as discussed in detail below.

[279]The reason for the Claimant’s dismissal, was that Mr Ball took the view, proceeding on the premise that the Claimant was unable to do Change Controls to the extent required, that she was unable to carry out the most fundamental part of her job. This state of affairs persisted for a very long period of time and there was no indication it would change. He was of the view that he had made all reasonable adjustments that might enable the Claimant to complete Change Controls but that they had not enabled her to return to completing them. Accordingly, and in light of the view he took about redeployment to other roles he dismissed the Claimant.

[280]The principal reason for dismissal was capability. Mr Ball dismissed the Claimant because he was operating on the assumption that she was unfit for her existing job because of ill-health, thus was unable to fulfil her role. He did have reservations about whether this was really true or not, but it was the basis on which he managed her. However, he was not prepared to let her ‘have her cake and to eat it’ as we think he saw it, in the sense that he did not think doing Change Control was very significantly different in a physical/mechanical sense to other roles/jobs so he was not prepared to redeploy or help her to be redeployed. That scepticism played a role in the dismissal in that it explains at least in part why the Claimant was not redeployed. However, the principal reason for the dismissal was as stated.

[281]To be clear, this was not a conduct dismissal. Mr Ball did not dismiss the Claimant because he disbelieved her about her ability to do Change Control. That would be an analytically distinct reason. Inferences

[282]We note that before making any finding as to the reason for the dismissal (and indeed the reason for any of the impugned treatment) we stood back from the evidence and asked ourselves what inferences we should draw.

[283]It was as part of that process that we drew the inferences set out above that Mr Ball and Ms Wilson had a suspicion that the Claimant was strategically trying to manoeuvre herself into a more interesting role.

[284]We gave particular thought to whether or not we should infer that the Claimant’s disability itself (or some other ulterior matter) was the reason or part of the reason for the treatment complained of, such as the dismissal. Ultimately, we decided that there was no basis for drawing that inference but the following factors gave us the greatest pause for thought.

[285]There are occasional references in the evidence in which managers said or suggested that the Claimant could not send emails. However, we do not think these should be taken literally and are ultimately not a basis for drawing adverse inferences. 285.1. It is clear that Mr Ball, Ms Wilson and Mr Wadey were all aware that the Claimant could send emails since she was in fact sending them emails and this was one of her primary means of communication with them. It cannot have been, and in our judgment was not, any of their view that she was unable to send any emails. That would have been totally irrational. Nor do we think they were strategically purporting that the Claimant was unable to send emails as some sort of pretext for dismissal (or anything else). That would have been so demonstrably baseless (by simply gathering emails the Claimant had sent - including to them) it would have been utterly pointless. 285.2. Ultimately, we take the view that it was a matter of poor and imprecise expression. The Claimant’s ability to use Outlook was a question of degree. Using Outlook does (ordinarily) involve use of mouse and depending on the particular task to hand can involve using a mouse a lot. Part of the Claimant’s complaint about Change Control was that it involved using the mouse a lot to search the Change Control shared inbox and get documents from it. This aspect accounts for a significant portion of the mouse clicks she describes in executing Change Control work. This was one of the reasons why in February 2018 the Change Controls were printed for her and sent to her personal inbox (rather than the shared inbox that need to be searched). There thus was an issue about using email though it was not that the Claimant was entirely unable to send emails. 285.3. In any event, the key point is that we do not think that any decision making proceeded on the (inaccurate) basis that the Claimant was unable to send any emails nor that anyone actually thought that the Claimant was unable to send any emails.

[286]Not getting up to date medical advice before moving to dismissal. As further explained below, we think this was unreasonable. However, we do not think it infers that the Claimant’s disability was the reason for dismissal or other impugned treatment: 286.1. The reason updated medical evidence did not happen was firstly because Mr Ball genuinely did not think it was necessary when the LTIH meetings were commenced. The possible need for it was identified as a discussion point for the LTIH meetings in both the July and November 2018 invitation letters in which Mr Ball expressed a provisional view that there was no merit in getting further OH evidence and asking for the Claimant’s comment. At that stage the OH evidence was relatively recent. And his effort to obtain further OH input in February 2018 had been rebuffed (he was told the case was closed). 286.2. There followed many meetings over many hours. The Claimant’s focus was immovably elsewhere – on the accuracy of the invitation letter - as described in more detail above and below. By the end of this process there did not appear to have been a change in the medical position i.e., the extent of the Claimant’s ability to carry out Change Control. In our view, that combined with the fact that Mr Ball had lost patience with the Claimant because of the approach she took to the meetings meant he did not see value in obtaining updated OH advice. He thought it better to bring matters to a conclusion.

[287]A certain level of hostility was shown to the Claimant: putting her on garden leave, cutting her system access, walking her out of the building, not assisting her with redeployment and indeed hindering it by speaking negatively to recruiting managers. None of that is very typical in ill-health capability cases. In our view the explanation for it is as follows: 287.1. For the reasons set out above Mr Ball suspected that the Claimant may be mis-using a medical issue to try and manoeuvre herself into a different role. He did not want her to achieve that. 287.2. Mr Bell grew frustrated with the Claimant because her time in his team had not been a success, it had taken so long to investigate Dragon and because the LTIH meetings had been such an investment of time and effort but without really scratching the surface of the agenda for the meetings because of the Claimant’s approach to them. 287.3. Mr Bell was indeed concerned, as he said, that there was a possibility of the Claimant being a threat to the business. Matters had become quite adversarial by the point of dismissal and he became more suspicious when he asked the Claimant what she was doing on Skype and she went offline. Fairness Consultation with the Claimant

[288]In our view there was adequate consultation with the Claimant. There were a large number of LTIH meetings. It is unfortunate that the meetings achieved very little but there was a clear reason for that. The Claimant had an obsessive focus on the accuracy of the letter inviting her to the meeting, including in respect of very peripheral issues. Some challenge to the terms of the letter would have been perfectly fair but the Claimant took it to an extreme to the point that the meetings were basically derailed and a discussion of the key issues was largely precluded.

[289]The Claimant was also uncooperative with Mr Ball’s efforts to move things on by consolidating her complaints about the invitation into an easy to use table. That would have enabled a good deal of the work in respect of the complaints about the invitation letter to take place outside of the meetings and the meetings could have been used more productively. That was unhelpful to say the least.

[290]Further, the Claimant has a fair opportunity to raise concerns in the form of her speak-ups and grievances. The Respondents did a reasonable job of dealing with those matters. At various times they stalled and protracted significantly. Again that was essentially because of the Claimant’s approach to them. There were many delays in her providing information, particulars and documentation. When she provided documentation it was often so heavily redacted it was meaningless. Medical information

[291]By the time of the decision to dismiss the Claimant in September/December 2019, the most recent OH advice was the better part of two years old. The most recent advice was from January 2018. That is a very long time.

[292]In our view, any reasonable employer, would have obtained up to date medical advice, whether from OH or otherwise, before taking the decision to dismiss. There was nothing in the original two OH reports that suggested the Claimant’s condition would never change over time or that there would be no utility in updating the advice in the future. It is notable that in February 2018, Mr Ball himself sought further OH advice but was told the Claimant’s case had been closed. That was distinctly unhelpful, but also did not come with any statement to the effect that there would be no point in making a further referral in the future, in the event of a significant passage of time and/or in the event of considering dismissal.

[293]While we note the Respondents’ position that the Claimant continued to represent that she was unable to carry out Change Controls, the Claimant was a lay person and it remained relevant and important to have up to date medical input. Efforts to find alternative employment

[294]It was incumbent on the Respondent to make reasonable efforts to find the Claimant alternative employment, at the least, once the decision had been reached that it could not sustain her in her existing role if unable to do Change Controls. However, what the evidence shows, is that at the moment that stage came, the Respondent, far from being prepared to make reasonable efforts to find the Claimant alternative work, did quite the reverse.

[295]Mr Ball told the Claimant that it would do this in the letter initiating thing LTIH procedure (in both July and November 2018): The redeployment policy allows a period of time, based on an employee's notice period, to look for an alternative role. In your case this would be 12 weeks. GSK would pay you for that full 12 week period, notwithstanding that it appears that you are not and will not be able to return to carry out your full duties in the foreseeable future. We would at the outset of this period work with you and Occupational Health to draw up what an ideal role would look like for you and then search for opportunities within the business - including short term assignments. However, the redeployment process does not create a role for an individual if one is not available and if the work does not need to be done.

[296]In the event, Mr Ball said this in his letter of dismissal on notice of 4 December 2019: I have reflected again on this and have concluded that it would not be worthwhile to spend any further time considering whether there is an alternative role for you. No suitable alternative roles have arisen during the extensive period that we have been discussing this issue with you and it is clear to me that it is highly unlikely that any roles would arise in a further reasonable period.

[297]In short, Mr Ball was absolutely not assisting the Claimant to find alternative work, on the contrary he was telling her it was not even worth trying.

[298]Further, despite the reason for the dismissal being capability and not gross misconduct or a matter of that sort, the Claimant was placed on garden leave and her system access was rapidly disabled. This meant that she could only attend the workplace if accompanied and more significantly that she could only apply for externally advertised vacancies and not internally only advertised ones.

[299]According to Ms Austen’s evidence there was a way of accessing internal vacancies via special login details. However, these were not provided to the Claimant. Thus she was compromised in her job search at the very most critical time, i.e., having been given notice of dismissal and the decision made that she could not remain in her existing job.

[300]The error of Mr Ball’s position, as stated in the letter of dismissal quoted above, is illustrated by the fact the Claimant must have come quite close to actually obtaining alternative employment in the notice period because she was shortlisted for a role and interviewed.

[301]In closing submissions, Ms Bell submitted that although it may appear that the level of assistance to the Claimant in respect of redeployment was reduced compared to what was stated in the letters initiating the LTIH procedure, in fact the Respondent had been more generous. That is because redeployment had been open to the Claimant throughout the long running LTIH procedure. We reject that submission. 301.1. Even if it were true that redeployment had been open to the Claimant prior to being given notice of dismissal and that the procedure to that point was protracted, any reasonable employer would nonetheless have taken reasonable steps to try and redeploy the employee in the notice period. Indeed the notice period was the most important period – it was the period in which the Claimant’s employment was at imminent risk. 301.2. We do not think the Respondent was in reality taking reasonable steps to redeploy the Claimant up to the point of being dismissed on notice in any event.

[302]Overall, the Respondent’s approach to alternative employment was outside the band of reasonable responses. Had the employer waited long enough?

[303]We are of the view that in principle the Respondent had waited long enough to see whether or not the Claimant could continue in her existing role. She had been unfit for it in an unadjusted form since around September 2017. A great deal of effort was put into seeing whether she could continue in that role with some form of adjustments. She could not. There was a strong appearance that she therefore needed a different role if her employment were to continue. However there were two shortcomings.

[304]The dismissal was outside the range of reasonable responses for the two reasons identified: 304.1. Up to date medical advice was needed to cross-check and potentially shed further light on the appearance that the Claimant remained unfit for her role in an unadjusted form then and for the foreseeable future. It may also have shed further light on adjustments and her fitness for alternative roles; 304.2. Reasonable efforts were not made in respect of redeployment. Direct discrimination

[305]As noted above, before determining the claims including the direct discrimination claims we stood back from the facts, looked at them as a whole and asked ourselves what inferences should be drawn. Having done that we reached our conclusions as now stated. Issue 11.1. The emails of 15 November 2017 communicating to management, HR and Occupational Health that C was incapable of using computer and emails.

[306]This complaint relates to Ms Wilson’s email of 15 November 2017 (despite the wording of the complaint being in the plural no other email of 15 November 2017 has been impugned.) Ms Wilson’s email, reads as follows: Hi Lucy I have read through this and have a number of concerns. Alina's job is in GSK Tech. By default, her role involves using her computer and email and other repetitive tasks are the largest part of that. We do not have any jobs that don't require extensive computer use in this department. Therefore this proposal does not meet business needs and leaves us with an employee who will have little to do. I cannot work with this in my team. If Alina cannot do her role right now, then she should surely be signed off until she can do some of the role she is employed for. Please advise how we can proceed, from next week Alina will likely be sitting with little to do on the basis of this outcome.

[307]The context of the email is of some importance in understanding its meaning. It is from Ms Wilson to the OH adviser (with Mr Ball and Ms Backhouse in Change Control) and follows Ms Wilson’s reading of the first OH report.

[308]In our view the sentence that reads “Alina's job is in GSK Tech. By default, her role involves using her computer and email and other repetitive tasks are the largest part of that” is Ms Wilson explaining to Ms Pope what the Claimant’s role involves. She is describing the use of the computer and sending emails as repetitive tasks and saying that this, together with other repetitive tasks is what the Claimant’s role involves. It is also what other roles in the department involve. The reason she is referring to repetitive tasks is because the OH report identifies repetitive tasks as the issue (“Alina feels that the main issue for her pain is having to carry out the repetitive computer tasks which involve heavy mouse usage.”)

[309]Ms Wilson’s paragraph that reads “If Alina cannot do her role right now, then she should surely be signed off until she can do some of the role she is employed for” also needs to be construed. It is not a declaration by her of what the Claimant’s abilities were or were not. She was simply saying that if the Claimant was unfit for her role she should be signed off. The email was therefore not doing what it is alleged to have been doing at issues 11.1.

[310]What this email really shows is Ms Wilson struggling to make sense of the OH advice. She did not understand how the Claimant could be fit for work if she could not undertake repetitive computer based tasks and this is what she was taking up with Ms Pope. She did not do this because of disability. She did it because: 310.1. The OH report suggested the Claimant was made unwell by carrying out repetitive computer tasks; 310.2. Ms Wilson knew that the Claimant’s and all other roles in the department required intensive usage of a computer; 310.3. She could not see any significant difference between Change Control and other repetitive computer based tasks.

[311]It is also important to be clear that we do not think any form of stereotyping of disability was going on here. Ms Wilson’s understanding of what the Claimant’s limitations were, were based on the OH health report as well as general logic and reason. Change Control is a repetitive task but it is a fairly unremarkable task that is not dissimilar to a wide range of other computer based tasks. It involves using a mouse quite a bit and a keyboard to interact with some pretty ordinary software like Outlook among others.

[312]Further, we think that Ms Wilson would have taken the same approach in the case of a hypothetical comparator whose circumstances were the same but who was not disabled or had a different disability. That comparator would be an employee in a comparable role to the Claimant’s, about whom Ms Wilson received an OH or other report describing a capacity to work limited in comparable way to the limitations described in the Claimant’s OH report. Issue 11.2. C was told by R2 in January 2018 that her role involved only Change Control Tasks.

[313]Mr Ball did say this but it was on 5 February 2018 not in January 2018. In closing submissions, Ms Bell pragmatically indicated that the Respondents took no point about the discrepancy with the date.

[314]However, we do not accept that Mr Ball said this because of the Claimant’s disability. The reasons he said this were: 314.1. As a matter of fact, in practice, Change Control was essentially the Claimant’s role by this stage of the chronology. This in turn reflected the fact that Change Control was the thing that the business really needed the Claimant to do. 314.2. For the reasons described under the heading of unfair dismissal, Mr Ball did not want the Claimant to manoeuvre herself into a different role. 314.3. It also reflected the fact that at this point in the chronology he thought there may be a solution which was for the Change Control forms to be emailed and printed.

[315]We are sure that Mr Ball would have treated a hypothetical comparator with no disability or a different disability in the same way. The comparator is someone who like the Claimant he was managing on the basis that they were unable to complete Change Controls, but whom he suspected may be trying to get out of doing them as a matter of choice in favour of doing a different more interesting job, and in circumstances where he believed that printing the Change Control forms may resolve the issue the comparator raised with carrying out Change Controls. Issue 11.3: R2 communicated to management and HR that C was incapable of performing her role or doing any work that involved Change Control tasks.

[316]The essential facts of this allegation are true. It was Mr Ball’s position, and this was something that he communicated to management and HR, that the Claimant was incapable of performing her role or of doing any work that involved Change Control tasks. A good example of him taking this position and communicating it to the business are his letters initiating the LTIH process (11 July 2018 and 16 November 2018).

[317]In order to discern the reason for Mr Ball taking this position some analysis is required. It is necessary to identify the premises on which Mr Ball said that the Claimant could not perform her role: 317.1. His position was that Change Control was absolutely central to it. It was at the core of the Claimant’s role and was the duty which the business really needed the Claimant to carry out. We accept that this was genuinely his view and that it was essentially supported by the facts on the ground. When the role had been described to the Claimant at the outset, it had two other major elements: IBM work and SOX work. The IBM work had moved to a team in Poznan (although it is true that there were a few bits of IBM work that continued to be done locally). The SOX work had been outsourced and the way it was done had changed. This meant that the role as originally promised to the Claimant had changed. What was left of that role was essentially Change Control. There were other roles and opportunities in and beyond Mr Ball’s team but they are another matter that go beyond the Claimant’s actual role. Of course thought needs to be given to that aspect of the case – and it is – above and below. 317.2. Mr Ball’s position was that the Claimant was unable to do Change Control. He was, as we have found, sceptical that this was true because he found it hard to understand how there could be a problem with doing Change Control but not with doing other similar computer based tasks. Despite that scepticism his position was that the Claimant was unable to do Change Control and the key reasons for taking that position were that: 317.2.1. The Claimant had reported suffering from pain and numbness caused by doing that task; 317.2.2. There was occupational health evidence in support of the Claimant’s position; 317.2.3. In February 2019, after a good break from doing Change Control the Claimant reported that her symptoms had returned after doing a few Change Controls per day for about 5 days. That was even with a potential solution of the Change Controls being printed and emailed to the Claimant in place (albeit that the solution was not executed perfectly because the Change Controls were not always printed for the Claimant during this period though they were emailed to her). 317.2.4. A potential solution of using Dragon was identified but there was never a time (we have found) at which that potential solution actually worked and Mr Ball concluded it was not in fact a solution. 317.3. A particular issue that needs thought is why Mr Ball suggested that the Claimant was unable to perform any Change Controls as distinct from being unable to perform Change Controls all day every day. We find that Mr Ball suggested this because it is what he believed to be the case. The basis of his believe was: 317.3.1. The matters stated in the previous paragraph which are repeated; 317.3.2. Beyond that, we reject the Claimant’s evidence that she actually told Mr Ball she could do some Change Control activities without Dragon provided it was not all day every day. She did ask to shadow someone carrying out project related work to find out how much Change Control tasks were required compared to doing Change Controls all day every day (her email of 10 December 2018 and 24 January 2019). However, that is not the same thing. It did not include an express representation that she would be able to carry out Change Controls if it formed a more limited part of her role. It is true that it could be inferred from these emails that the Claimant was saying it might be the case that she could carry out Change Controls if it formed a small part of her role. However, Mr Ball did not draw this inference. On the contrary he simply viewed this as another attempt by the Claimant to try and secure a different more interesting role by using her inability to carry out Change Controls. This why his response was, essentially, that the project related work also required Change Controls to be carried out.

[318]The above are the reasons that Mr Ball took the position, and made representations, he did. Mr Ball’s reasoning may not have been perfect but managers (and everyone else) often reason imperfectly. Disability was not the reason nor part of the reason for the treatment.

[319]We find that Mr Ball would have treated a hypothetical comparator who did not have a disability or had a different disability, but was otherwise in materially the same circumstances as the Claimant, in exactly the same way. The 319.1. Was in a similar job to the Claimant; 319.2. Reported the same problems doing Change Control; 319.3. About whom there was comparable medical or non-medical evidence from 319.4. Mr Ball suspected that the comparator was exploiting a professed inability to carry out Change Controls as a strategy to manoeuvre into a better and 319.5. In circumstances in which there was a rational basis for this suspicion tasks/roles. 11.4 C made requests to be transferred to alternative roles, as per the OH reasonable adjustments recommendations, from November 2017 (See Annexure 1 of the C’s Further and Better Particulars) and those requests were denied.

[320]We accept the Claimant’s evidence that this was a business in which there was wide scope for employees to get involved in projects, secondments and other opportunities of many kinds. Many of these were arranged informally and not through any kind of formal recruitment process, although there were also roles and opportunities that did go through a formal recruitment process.

[321]The Claimant was looking for alternative roles and opportunities for a long time. From around late 2017 onwards. She had held many roles with the Respondent in the past and had very wide range of experience. We find it totally unrealistic that, if there had been a will to find the Claimant additional opportunities or roles, there was any major impediment to prevent that over that period of time. If there had been a will to do so, it is plain to us that in an organisation of this size, resource and calibre this could have happened. It is plain that all around the Claimant her colleagues were being given opportunities of various kinds.

[322]There was not a will to transfer the Claimant to an alternative role and the key questions are, why not? And was it, wholly in part, because of the Claimant’s disability?

[323]We find it was essentially because the Respondents thought that the Claimant did not deserve/merit an alternative role for the following reasons: 323.1. The Claimant came to the department with some history. It is not in evidence quite what, beyond that she had “issues” with all the other line managers but it is plain that there was some ‘baggage’; 323.2. It is plain that Mr Hayter wanted the Claimant’s role to be simply Change Control but that the Claimant managed to secure assurances that it would not be; 323.3. On arriving in the department the Claimant was slow to complete her training (albeit that there was a partial explanation for this in that there were some IT problems progressing through the training). She was also slow in completing Change Controls and got through few of them (despite we accept working hard). 323.4. The centrality of Change Control to the Claimant’s role evolved and increased with some business changes that happened independently of anything to do with the Claimant (IBM work largely moving to Poznan, SOX work being outsourced and changing); 323.5. The Claimant then reported that her work/life balance was wrong and harming her. The Respondent found this hard to understand in light of the few Change Controls she was getting through. It also did not understand why she was working at the weekend as there was no such requirement. 323.6. The Claimant then reported that carrying out Change Control was harming her physically. The Respondents found this hard to understand because the mechanics of the task are unremarkable and not dissimilar to a great deal of computer based activity which it was the Claimant’s position she could do. As explained under unfair dismissal above they were therefore sceptical that what the Claimant was saying was true and suspected that she may be using a medical issue to manoeuvre herself into what she had wanted in the first place: a different role that was not dominated by Change Control. 323.7. It then took a very long time to explore whether or not Dragon provided a solution and in the course of that the Respondents further lost patience with the Claimant though the timescales were not in fact entirely down to her by any means. 323.8. It would not have been convenient or ideal for the business to transfer the Claimant to an alternative role. It did have a business need for her to carry out Change Controls.

[324]For those reasons the Respondents did not think that the Claimant deserved or merited an alternative role and did not have a will to transfer her to one. The Respondents did not want to give in to the Claimant and give her what she wanted: a different or at least more varied role. There were additionally some business reasons that added further obstacles to the Claimant being given any particular role one of the identified roles. None of these were even in part disability. They are explored in more depth in the context of reasonable adjustments.

[325]We find that the Respondents would have treated a hypothetical comparator who did not have a disability or had a different disability, but was otherwise in materially the same circumstances as the Claimant, in exactly the same way. The 325.1. Was in a similar job as the Claimant; 325.2. Who reported the same problems doing Change Control; 325.3. About whom there was comparable medical or non-medical evidence from 325.4. Whom the Respondents suspected was exploiting a professed inability to carry out Change Controls as a strategy to manoeuvre into a better and 325.5. In circumstances in which there was a rational basis for this suspicion tasks/roles. 11.5 C was dismissed on 4 December 2019, effective 4 March 2020.

[326]The reasons for dismissal are as explained under the heading of unfair dismissal above, which should be read together with the analysis of the other direct discrimination complaints also above.

[327]The reasons for the Claimant’s dismissal did not include her disability.

[328]We find that the Respondents would have treated a hypothetical comparator who did not have a disability or had a different disability, but was otherwise in materially the same circumstances as the Claimant, in exactly the same way. The 328.1. Was in a similar job to the Claimant; 328.2. Reported the same problems doing Change Control; 328.3. About whom there was comparable medical or non-medical evidence from 328.4. Whom the Respondents suspected was exploiting a professed inability to carry out Change Controls as a strategy to manoeuvre into a better and 328.5. In circumstances in which there was a rational basis for this suspicion tasks/roles; 328.6. There had been the same passage of time without apparent change in ability to carry out Change Controls; 328.7. There had been comparable effort to explore adjustments to the existing role; 328.8. There had been a comparable number of comparably unfruitful LTIH meetings. Reasonable adjustments

[329]The Respondents accept that: 329.1. the PCP of requiring the Claimant to perform Change control tasks was applied; 329.2. it accepts that it put the Claimant at a substantial disadvantage compared to other employees who are not disabled; 329.3. it accepts that it had knowledge of both that and that the Claimant was a disabled person at the relevant times.

[330]These concessions were helpfully and correctly made in closing submissions. Issues 22.1 and 22.3

[331]All of the adjustments identified at paragraph 21.1 of the list of issues relate to permitting the Claimant to carry out a different role or opportunity. It is convenient to deal with those complaints together with 22.3 which relates also to redeployment but is stated in a more general way. Pre-July 2018 period

[332]Chronology is one of the important elements in the analysis here.

[333]In our view, until the LTIH procedure was initiated in July 2018, it was reasonable for the Respondents not to deploy the Claimant to any other role or opportunity beyond what it did. That is because until then matters were at a preliminary and formative stage and the Claimant’s time was meaningfully and usefully occupied: 333.1. In the late/summer and autumn of 2017 the medical issues were just beginning and then being investigated; 333.2. Once OH evidence was obtained, it was perfectly reasonable and sensible to focus on finding out whether or not with adjustments the Claimant could carry out her existing role. This is a role the Respondent had a heavy business need to be done so it was reasonable to put time and effort into seeing whether the Claimant could do it. 333.3. The Claimant was temporarily excused from actually completing Change Controls from her return to work from sick-leave onwards barring a short period in February 2018. She was given meaningful work to do. Initially this was completing her long delayed training on Change Control. That was an appropriate focus. 333.4. There was then an attempt in February 2018 to check whether the symptoms would return if she resumed doing Change Control in a modified way (printed and emailed to her); 333.5. That did not work so she was given alternative work in the CMDS migration project whilst she and the Respondent continued to investigate whether or not Dragon would work. Post-July 2018 period

[334]There was a step change however, when, on 11 July 2018, Mr Ball initiated the LTIH procedure. This was essentially on the basis that the Claimant was unable to fulfil the core duty of her role, that such adjustments as could be made had been, and that Dragon did not work. At this point, although it is also true that Mr Ball allowed the Claimant to continue investigating Dragon, there was a clear risk to the Claimant’s employment if she was not deployed to other work.

[335]At this point we think that the biggest impediment to finding the Claimant alternative work was that the Respondents did not have a will to do it for the reasons that we have set out above. Although we accept that there was a rational basis for the Respondent to suspect that the Claimant may be using a medical issue to surreptitiously manoeuvre herself into another role, it was not reasonable to refuse to redeploy the Claimant for that reason without first openly confronting her with it and following a fair process to decide one way or the other whether the suspicion was well founded. The Respondent evidently chose not to do that, and having decided to take matters down the LTIH route, the only reasonable course was to follow that through properly and make a reasonable effort at redeployment.

[336]That, of course, is not to say that had the Claimant been redeployed to another role that involved no or much less Change Control, it would have actually worked out. It was possible that the reality was that the nerve impingement would have proved a significant problem in that new role too if, as was inevitable in this business, it involved a lot of computer work with mouse use. However, given that the Claimant was reporting that she could do non Change Control tasks, and given that she was in fact doing them (e.g. in the CMDS migration work) there was at the least a prospect of her being able to work in another role.

[337]The Respondent is an enormous employer. As set out above it was one in which there were very many opportunities, formal and informal, of different types and lengths. Many of these were not filled through open recruitment which is significant in that it shows that this was an organisation in which it was culturally possible to move people around and deploy them without, in all cases, formality.

[338]The Claimant had a very wide range of skills and a huge amount of experience in different roles in the organisation. She was thus potentially suited to a very wide range of roles/opportunities.

[339]The Claimant has done more than enough to shift the burden of proof to the Respondent in respect of her case that she should have been found an alternative role she was capable of. This means a role that involved little or no Change Control, whether because the role simply did not involve it or because it could be adjusted down or out of it. As Latif makes clear, it is not necessary to identify all of the details of the adjustment and thus not necessary to identify the exact role/opportunity for the burden to shift.

[340]The burden having shift to the Respondent we do not accept that it has discharged it. We do accept and appreciate the Respondent’s evidence that organisational changes were afoot and that at times it was trying to make savings on headcount. However, it is evident that it remained an organisation filled with opportunities.

[341]A particular shortcoming with the Respondents’ evidence is that it has barely engaged with job opportunities beyond Mr Ball’s and Ms Wilson’s teams. There is no good explanation for that. It is obvious that were very many jobs and opportunities outside their team in an 110,000 employee strong organisation, and there was no good reason why redeployment of some kind had to be limited to their teams. Indeed, in her notice period the Claimant almost did secure alternative employment in another team.

[342]A further difficulty is that in her notice period the Claimant was not assisted in her job search but the contrary happened. Yet further the assistance she was told that she would be given – management and OH assisting her to design an ideal role as part of the process of actively helping redeploy her – simply did not happen.

[343]Altogether the Respondent has fallen well short of discharging the burden of proof that has passed to it in respect of issue 22.3.

[344]Turning to the specific roles that are raised at the sub-paragraphs of paragraph 22.1 we find as follows.

[345]GDPR opportunity: 345.1. The burden shifts to the Respondent in respect of this opportunity. In addition to the general points made above, it is work that did not involve Change Control, which the Claimant was interested in and which in principle there was at least a prospect that she could have done. 345.2. However, the Respondent has discharged the burden and we are satisfied it would not have been reasonable to deploy the Claimant to this work. The Claimant’s case is that there was an opportunity here until the end of 2018. The analysis above deals with the period prior to July 2018. As at July 2018 the Claimant continued to have meaningful work to do on the CDMS migration work. In September and October 2018 she had additional meaningful work to do (the audit) assigned to her by Mr Ball. It was reasonable not to deploy the Claimant to this GDPR work which was always going to be time limited especially while she had other meaningful work to do. Once the audit work had been completed the GDPR project was almost at an end. By this stage it was not worth deploying the Claimant to it and it was reasonable not to. It would have taken time to build the skills and it was not worth that investment with the work coming to an end.

[346]Permanent role as a Service manager in the wider team: 346.1. The burden shifts to the Respondent in respect of this opportunity. In addition to the general points made above, it is work that did not involve as much Change Control, which the Claimant was interested in and which in principle there was at least a prospect that she could have done. 346.2. However, the Respondent has discharged the burden and we are satisfied it would not have been reasonable to deploy the Claimant to this work. We have accepted Ms Wilson’s evidence this was in fact an IT Quality manager role, that it involved 20 – 60% Change Control activities. This means that while there was a prospect the Claimant might have been able to complete it since it did not involve Change Control all day every day, the prospect must have been low (which is a relevant but not determining factor). Moreover, we also accept Ms Wilson’s evidence that the type of Change Controls involved in this role were more complex than the Claimant had been doing and that the Claimant had not yet demonstrated the Change Control competence needed to move onto it. In short, this role was not a good candidate for an alternative to the Claimant’s role.

[347]Smart Controls (Claimant says there were opportunities from 2018 – to December 2019): 347.1. The burden shifts to the Respondent in respect of this opportunity. 347.1.1. In addition to the general points made above, it is clear from the evidence that a lot of work was going on related to smart controls. Only a fraction of it required coding skills (which the Claimant did not have). Through cross-examination the Claimant established that there was more smart control opportunities around than the Respondents’ evidence suggested and that there were more people involved in those opportunities than the Respondents’ evidence suggested. 347.1.2. We are satisfied that there is a prima facie case that there was significant work relating to smart controls that there was a prospect that the Claimant could have done. 347.2. The Respondent has not discharged the burden of proof: 347.2.1. We accept that Smart Control as such was not a role. However, it was a new tool that generated a lot of work. The work was of various kinds. It included the development of the tool, testing the tool as well as the actual use of it. 347.2.2. We accept that coding skills were required for some of the work, however that was essentially only for the initial development of the tool. Many of the Claimant’s colleagues who were doing smart control related work did not have coding skills. 347.2.3. It is true that using the Smart Control tool was a computer based activity that in the ordinary course one would expect to be quite mouse intensive. There was a basis for concern then that the impact on the Claimant may be the same as when doing Change Control. This may or may not have proved to be the case. However, there was at the least a prospect that it would not have. For example it might have been possible to use the keyboard more, or perhaps Dragon would have worked with this task though it did not with Change Control. There was a way of finding out: trying it. 347.2.4. We found the Respondents’ evidence on this opportunity unsatisfactory. Its starting position was undermined through cross-examination which showed that more employees (without coding skills) were working on smart controls than the Respondents volunteered, such as Hannah, Van and Sonia albeit that it was not entirely clear what they were all doing.

[348]Roles/opportunities as IT/Quality project Manager which required less Change Control: 348.1. The analysis here is as per issue 22.1.2. The burden shifts but it was reasonable not to deploy the Claimant to such a role. A core component of the role was Change Control. It accounted for less of the role than the Claimant’s existing role but it was still a core component. Further, the type of Change Control work involved was more difficult and advanced and the Claimant had not yet progressed enough in her Change Control competence to do it. Issue 22.2 Permitted Dragon Speak Software

[349]The short point is that the Claimant was permitted to use Dragon software. It was purchased and a great deal of effort was put into trying to get it to work (in this context ‘work’ means enable the Claimant to carry out Change Controls without intensive mouse usage). It never did and that is why it was not used; it was not a permission issue.

[350]In any event we are satisfied that all that could reasonably have been done to try and get it to work was done and that in the final analysis, that being so, there was no prospect of it working.

[351]A great deal of time and effort, including the Claimant’s, was put into establishing whether or not Dragon worked. It was tested a number of times along the way and it did not work. After those tests the Claimant was permitted to continue trying to get it to work. Our finding is that despite her efforts she did not manage to get it to work.

[352]Again, ultimately, all that could reasonably have been done to explore Dragon as a solution was done. A reasonable amount of time, effort and resources were put into that endeavour. Additional equipment was purchased and the Claimant was given 9 hours of in person training (albeit that there were delays). The inquiry could not go on forever, and, although it was hasty for Mr Ball to decide as at July 2018 that it was not a solution, in fact he allowed the Claimant to continue working on Dragon for much longer and the correspondence shows that he remained open to it working. It did not and even by the time of the Claimant’s dismissal it was not working. Issue 22.4: Removed some or all of the Change Control Tasks from her role and allocated that work to others.

[353]For significant periods of the chronology this is in fact what happened. There was a hiatus in the Claimant’s Change Control activities after her return from sick leave in October 2017 to February 2018. Then in February 2018 for about a week she was required to do Change Controls (in a modified way). Thereafter she stopped carrying out Change Controls albeit that this is not a complete answer because carrying out Change Controls remained her duty in the most meaningful sense in that she was at risk of dismissal as a result of not being able to do it.

[354]However, it would not have been reasonable as a standalone adjustment to simply remove some or all of the Claimant Change Control duties from the scope of her role. By the time that a significant problem with carrying out Change Controls arose, carrying out Change Controls was more or less what her job comprised of. If all of the Change Control duties had been removed then there would have been basically nothing of the role left. If some of them had been removed it is hard to see how this would in any way of resolved the problem since basically all that would have been left was Change Controls.

[355]Thus this adjustment in reality makes sense only in the context of the Claimant being given alternative roles and opportunities and we have made our points about that. If the Claimant had been given an alternative role(s)/opportunity then naturally that envisages that her existing role would be assigned to others, whether existing employees or contingent workers (which the Respondent made a lot of use of including for Change Control work).

[356]In short, this adjustments would not have been reasonable in and of itself; but it is inherent or at least implicit that it would have been made had the Claimant been deployed to alternative opportunities/roles (as dealt with separately above). Discrimination arising from disability

[357]The Respondents correctly conceded in closing submissions that the Claimant’s inability to perform Change Control tasks to the extent required arose in consequence of disability. It also accepted that the Claimant’s dismissal was because that inability.

[358]The s.15 complaint then, turns on justification.

[359]The aim relied upon is that the Respondent: “Needed to ensure that it had a full headcount of staff who were able to perform the key Change Control tasks associated with C’s role.”

[360]We accept that this was a legitimate aim. Change Control was a critical business task, there was a lot of it to do and it was central to the Claimant’s work and the work of others in the surrounding teams. We also accept that the need to have someone in the Claimant’s role who could carry out this task was the central reason for the Claimant’s dismissal. She could not do it.

[361]The key issue in our view is whether it was reasonably necessary to dismiss the Claimant in order to meet this business need. Or put differently whether the legitimate aim could have been achieved but with a lesser discriminatory impact on the Claimant.

[362]The Respondent’s case that it was reasonably necessary to dismiss the Claimant to meet this business need is premised upon it having made reasonable adjustments to attempt to retain her in employment. The difficulty for the Respondent of course is that we have found against it on that front.

[363]Our finding is that the Respondent failed to take reasonable steps to deploy the Claimant to other work. Since there were reasonable further steps it should have taken to retain the Claimant in employment her dismissal has not been shown to be reasonably necessary. If the Claimant had been redeployed to other work there would have been no need to dismiss her to achieve the legitimate aim. Someone else could have been recruited or transferred to her old role or perhaps it could have been covered by contingent workers.

[364]Of course none of that is to say that if the Claimant had been redeployed her employment would have been a success or that it would have endured for any particular length of time. It is possible for instance, that it might have come to a swift end perhaps because proved to be incapable of it (medically or otherwise) or because of redundancy. But those are other matters that go beyond the dismissal we are considering and go into the assessment of remedy. Time limits

[365]The only successful claims that might be out of time are the reasonable adjustments claims. Time limits operate in a complex way in reasonable adjustments claims.

[366]In this case our view is that the earliest point in time that time ran from in respect of the reasonable adjustments claims that succeeded (which all relate to deploying the Claimant to alternative roles/opportunities) is July 2018. We repeat, albeit now in a different context, the points we made above about why it was reasonable not to seek any redeployment / opportunities for the Claimant beyond that which actually happened, prior to July 2018.

[367]The Respondents do not concede that if the complaints are out of time it is just and equitable to extend time. However, Judge Dyal noted in closing submissions that no submissions had been made about that and Ms Bell candidly said the Respondents did not have any submissions to make.

[368]Let us assume that time ran from July 2018. Even on that basis we find that it is just and equitable to extend time. We think there are two key factors: the explanation for the delay and the balance of prejudice. 368.1. In essence, the reason the Claimant did not present her claim more swiftly than she did was because she treated litigation as a last resort. Prior to litigating she wanted to try and resolve the matters internally. She did not want to litigate if she had a job. Thus she did not litigate until she was dismissed and she used the dismissal – which was undoubtedly the most important and significant of her complaints – as the reference point for limitation. We find this an understandable explanation though it is also the case that it is not a wholly compelling one. 368.2. We do not accept that the Respondents are prejudiced in any material way by the delay between July 2018 and the presentation of the claim. Given the fact the employer was following an LTIH procedure, it was always going to be necessary to consider alternative employment and be ready to explain in the event of litigation about dismissal the history of that and why it had not happened. 368.3. Essentially the same issues are before the tribunal anyway: there is a s.15 claim which is in time and the adjudication of the justification aspect of which necessarily requires an assessment of the history leading to dismissal especially redeployment issues. 368.4. The Claimant may well be materially prejudiced if we did not extend time. Although she would nonetheless be able to pursue her complaints about dismissal (since they are in time) she would be deprived of seeking a remedy in respect of what we have found to be meritorious reasonable adjustments complaints. It may well be that her main remedy lies in respect of the dismissal claims but the reasonable adjustments complaints seems likely based on what we currently know to add something - for instance in injury to feelings. We stress that we remain open minded about remedy and the point made here is just a very general and preliminary one.

[369]If the reasonable adjustments claims are out of time it is just and equitable to extend time. Next steps

[370]The parties should liaise with each other and endeavour to resolve remedy between them. If they are not able to, the tribunal is here to determine remedy and case management orders in respect of that will be given under separate cover. A case management hearing will be listed to take place in the new year.

[371]The First Respondent is liable in respect of all of the complaints that succeeded. We have not determined which if any of those complaints the Second Respondent is also liable for. That is because the matter of the Second Respondent’s liability was not addressed by either party in closing submissions. We consider it preferable to defer that matter and deal with it concurrently with the remedy stage of the case. However, we can say now that the Second Respondent cannot be liable for the unfair dismissal claim since he was not the employer and liability for that rests only with the employer.

Discussion and conclusions

[1]The respondent’s argument is that the claimant would have been made redundant in a redundancy selection exercise that began in January 2020, during her notice period, alternatively that she would have been made a subsequent redundancy exercise in 2021.

[2]Before considering that possibility the Tribunal has to assess what would have happened if the respondent had made the reasonable adjustments identified at the hearing on liability.

[3]The relevant disability was “right wrist pain and c6/7 nerve root impingement” and was exacerbated by the claimant’s use of a computer mouse. The first adjustment Page 1 of 24 was that the claimant be given work in a different area, Smart Controls, which might have helped her to avoid that pain.

[4]The prospect of that adjustment being effective is assessed as 50%.

[5]There is therefore a 50% likelihood that the claimant would have remained in her existing team and been part of the 2020 redundancy exercise.

[6]If she had been part of that exercise there was a 90% chance that she would have been made redundant in 2020.

[7]If she had not been made redundant then, there is 100% chance that she would then have been made redundant in the next redundancy selection exercise in 2021.

[8]In the alternative (50%) scenario, that the claimant would have remained in the first respondent’s employment but in another role, the Tribunal also has to consider the prospect that she would not have been able to carry out that role, given that she would probably still need to use a computer mouse.

[9]The Tribunal assesses that there is an even chance of an alternative role being successful. On that basis there is a 50% chance of her employment lasting a further year and a 50% chance that it would have continued after that time.

[10]The claimant has an obligation to mitigate her loss by making reasonable efforts to find alternative employment. That aspect of remedy has yet to be considered and may affect any calculations based on the above assessments. ACAS Code

[11]The claimant’s argument that an uplift should be applied to the compensation awarded, on the basis that the respondent failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures, is rejected. She relies on the delay in holding an appeal in relation to her grievance, not an appeal against her dismissal, and in any event there was no such failure. Injury to Feelings

[12]Damages for injury to feelings are assessed as falling in the middle of the middle band for such cases, in the total sum of £24,785, as follows:(a) Injury to feelings, £17,550

(b) Interest on the above from 4 December 2019 to 27 January 2025 at 8%, £7,235.

[13]There is no award of aggravated damages. Page 2 of 24

[14]The remaining issues in relation to remedy will proceed to a further hearing on 25 March 2023 by CVP. A link for the hearing will be sent shortly beforehand. The claimant may join the hearing from the tribunal centre if preferred.

[15]Directions have been given to the parties for(a) exchange of remaining documentation by 28 February 2025

(b) updated schedules of loss by 11 March 2025 and

Introduction

[16]Other concerns on her part included the documentation. For example, she was unhappy that she only received a draft bundle on 20 December 2024, which was the date for a final agreed version. (That, we accept, was because of the lastminute nature of the directions for this hearing, which required a major effort on the part of the respondent’s solicitors.) She also wanted an electronic version in addition to the weighty paper files, which amounted to nearly 1500 pages, and that was provided too. She had in fact prepared her own bundle. There was a good deal of overlap but it added some documents about her work performance.

[17]Then, at the start of the fourth day, she asked for an adjournment, on the basis that she had not been sleeping and was not in a position to go ahead. We allowed this, although we did make it clear that we would need to deal more briefly with the remaining issues, and set out a revised timescale.

[18]Overall, this case has occupied about 30 days of Tribunal time. Apart from the numerous preliminary hearings there was a three day hearing on disability, an initial liability hearing which was consumed by procedural matters and abandoned on day six, then a further ten day hearing on liability. That ended over a year ago, despite which there have been continuing difficulties in preparing for this hearing. We are concerned that Mrs Harutunian is no longer realistically able to deal properly with the pressure of this process. We have therefore made it an overriding priority to resolve as many of the outstanding issues as we could in the course of this hearing.

[19]The Tribunal has also made orders regarded Restricted Reporting and Privacy in relation to some aspects of this case, but these had no bearing on the issues in this judgment and so there has been no need for any redaction.

[20]We will now deal with the particular issues in turn. Page 6 of 24 The Redundancy Question

[21]On the face of it, this is a strong potential argument for the respondent. Mrs Harutunian was given notice on 4 December 2019 and her employment ended on 4 March 2020. During that time there was a redundancy selection exercise. She had been struggling to carry out her role for a long time and so might well have been selected. The company says that it was virtually certain; if only she had carried on in her role a little longer, that is how it would have ended.

[22]The main difficulty with that approach is the Tribunal’s conclusion that instead of dismissing her, the respondents should have found her another role somewhere else in the business; not that they should have looked for another role, or helped her to find one, but actually found her one. If they had done that, she would not have been in the team when redundancies were being made.

[23]However, even that is not certain. The other reasonable adjustment was working in or with Smart Controls. That might have worked. It might have meant that she was able to carry out her role, that she stayed in the team and avoided being dismissed on grounds of capability. If that had happened, she would have been caught up in the redundancy programme. We therefore have to assess carefully all of the possibilities. As Ms Bell explained in her skeleton argument: “It is imperative that the Tribunal is careful to construct what would have happened had the Claimant not been afforded any unlawful treatment. The first reasonable adjustment - Smart Controls

[24]The previous findings on this issue were these: “201. Smart Control was a new tool that was developed and introduced to assist with compliance determination assessments. It was not a job or a role as such, it was simply a new application that replaced two previous applications.202. We accept Mr Ball’s evidence that smart controls are essentially a list of questions that allow an application owner to determine what requirements (aka Controls) need to be considered in order to provide assurance that the application is fit for purpose.

203. Smart Control was developed in-house and thus one aspect of work related to Smart Control was coding, i.e., the actual creation of the application. This required coding skills. The Claimant did not have coding skills. However, that was not the only aspect of work related to Smart Control. The application also needed to be tested and developed and then used. Coding skills were not required for that. A wide range of the Claimant’s colleagues were involved.

204. We find that in physical/mechanical terms using the Smart Control application was, at least without adjustments, a fairly mouse intensive activity. For instance, it was necessary to make selections from a large number of drop down boxes, and Page 7 of 24 then to review the controls created (of which there could be 60 – 120), review spreadsheets and verify results appending evidence.

[25]Having made their findings, the key conclusion of the Tribunal was as follows: 347.2.3. It is true that using the Smart Control tool was a computer based activity that in the ordinary course one would expect to be quite mouse intensive. There was a basis for concern then that the impact on the Claimant may be the same as when doing Change Control. This may or may not have proved to be the case. However, there was at the least a prospect that it would not have. For example it might have been possible to use the keyboard more, or perhaps Dragon would have worked with this task though it did not with Change Control. There was a way of finding out: trying it. [Emphasis added]

[26]We now have to put a figure on the conclusion that there was “at least the prospect” that it would have worked. How likely is that in percentage terms? It is not a very positive form of words and it reflects the fact that tasks in Smart Controls would also be quite mouse intensive. Mrs Harutunian was in real pain doing her existing work. She also found it quite repetitive and wanted some variety but that does not mean that moving to work in Smart Controls would have made it any better.

[27]Given those basic facts, we might well have concluded that the use of Smart Controls offered only a modest chance of success but the parties’ positions also have to be taken into account. The respondents say that it is 100 percent likely that it would have worked. That is a slightly surprising view, given that it was repeatedly asked for by Mrs Harutunian and refused, but on examination there is no obvious inconsistency in their position. At the hearing on remedy their arguments were confined to the availability of such work; they did not suggest that it was not worth trying because it would not have been effective.

[28]Mrs Harutunian’s case was less clear. When asked directly, she did not feel able to offer a view. That remained the position even after allowing her half an hour to reflect on it. On the other hand, she has never suggested that Smart Controls were merely something that might have worked. The possibility of failure has never been countenanced by either side. Her cross-examination of Mr Ball, for example, was explicitly done on the basis that by the time of the first redundancy selection exercise, she would have had experience with Smart Controls and should have been scored higher as a result.

[29]So we have to reconcile our initial scepticism with the view of the parties that it would have had a very good chance of success. It is difficult to understand the basis for their confidence, given the previous findings about the extent of mouse work that it would involve, but there was an Occupational Health report to the effect that it was only working in the specific area of Change Controls that needed to Page 8 of 24 change and of course the parties are much more familiar than we are with the practicalities of the matter.

[30]At the same time, the position of the parties may also reflect tactical considerations which ought not to form any part of our assessment of what is a factual issue, albeit a hypothetical one. The respondents’ preferred outcome is a 100% finding, so that Mrs Harutunian would definitely have remained in the team at the time of the redundancy selection exercise. Mrs Harutunian may have been tempted to argue the opposite, but felt constrained in doing so by her previous insistence on the importance of this adjustment and the unfairness of not being given a chance to do it.

[31]In those circumstances, we concluded that we should not let the views of the parties predominate on this issue, but we cannot disregard it altogether as being merely tactical. Overall therefore, we assess the chance Smart Controls succeeding as 50%. The second reasonable adjustment – another role

[32]If Smart Controls had not been successful we have to consider the next adjustment and the next hypothetical scenario, that she should have been found an alternative role, one which she was capable of undertaking with or without further reasonable adjustments. The actual efforts made at the time are recorded in detail: “Roles outside of team217. In around November 2019 (after the “preliminary” decision to dismiss), the Claimant applied for a role as a Project Manager in another section of the business. …

218. The Claimant’s application was not progressed and she did not get an interview. She believes that Mr Ball spoke negatively about her and put the recruiting manager off. … 220. The Claimant also applied for a role in the data privacy team. Mr Xavier Jean was the recruiting manager. This application appears to have been during her notice period. The Claimant was shortlisted and interviewed. 221. The Claimant says she had positive feedback from the interviewers and was told that she would hear back in respect of the role before the end of week. We accept her evidence. She did not hear back until she followed up and was told she had not been selected.

[33]The Tribunal concluded on balance that Mr Ball had spoken to each of the recruiting managers about her suitability and so she had not been successful. However, there was no finding that he said anything that was untrue or unfair. Page 9 of 24 These applications were described to show that there were opportunities for Mrs Harutunian within the company. The Tribunal went on:335. At this point we think that the biggest impediment to finding the Claimant alternative work was that the Respondents did not have a will to do it …

336. That, of course, is not to say that had the Claimant been redeployed to another role that involved no or much less Change Control, it would have actually worked out. It was possible that the reality was that the nerve impingement would have proved a significant problem in that new role too if, as was inevitable in this business, it involved a lot of computer work with mouse use. However, given that the Claimant was reporting that she could do non Change Control tasks, and given that she was in fact doing them (e.g. in the CMDS migration work) there was at the least a prospect of her being able to work in another role.

337. The Respondent is an enormous employer. As set out above it was one in which there were very many opportunities, formal and informal, of different types and lengths. Many of these were not filled through open recruitment which is significant in that it shows that this was an organisation in which it was culturally possible to move people around and deploy them without, in all cases, formality.

338. The Claimant had a very wide range of skills and a huge amount of experience in different roles in the organisation. She was thus potentially suited to a very wide range of roles/opportunities. … 341. A particular shortcoming with the Respondents’ evidence is that it has barely engaged with job opportunities beyond Mr Ball’s and Ms Wilson’s teams. There is no good explanation for that. It is obvious that were very many jobs and opportunities outside their team in an 110,000 employee strong organisation, and there was no good reason why redeployment of some kind had to be limited to their teams. Indeed, in her notice period the Claimant almost did secure alternative employment in another team.

[34]The conclusion that Mrs Harutunian should have been found an alternative role is therefore a general one. There was no specific finding that she should have been put into this role or that one. The two jobs she applied for are clear possibilities, but it could have been further afield, given the size of the organisation. Whatever it was, there was still clearly a risk that Mrs Harutunian was unable to carry out that work either, for the same reason, that it involved too much mouse work.

[35]It does not follow that the duty on the employer would continue indefinitely, so that if one role did not work out they would need to move her again. Everything depends on what is reasonable in the circumstances and an adjustment is only reasonable if it has some prospect of being effective. But it is also clear that she ought to have been given at least one further chance in a role elsewhere. Page 10 of 24

[36]How then are we to assess the likelihood that a further, unspecified role would have been successful? Even if we were to start with the job in data privacy, for which Mrs Harutunian had an interview and successful feedback, we have no information about the nature of the role or the amount of mouse use involved. Apart from the physical implications, there was also evidence that her existing role had been created for her, given disagreements with previous managers, so any new role might not have lasted for other reasons. All this calls for a high degree of speculation.

[37]We remind ourselves of the relevant legal principles. The Court of Appeal considered it in Thornett v Scope

2007 ICR 236

. The Employment Tribunal found that, had she not been unfairly dismissed, Dr Thornett would only have remained in her role for a further six months due to ongoing disagreements with her colleagues. On appeal, the Employment Appeal Tribunal held that the tribunal should not have launched itself on “a sea of speculation” and should have accepted that it could not, on the evidence before it, “sensibly recreate the world as it might have been”. Given the evidence about how the claimant and her colleagues could work together, they considered that it was wrong to place a limitation in time as to the duration of the relationship and to reduce the losses accordingly.

[38]However, when the case reached the Court of Appeal, Lord Justice Pill stated that deciding compensation for future loss of earnings will “almost inevitably involve a consideration of uncertainties”. There may be cases in which evidence to the contrary is so sparse that a tribunal should work on the basis that loss of earnings would have continued indefinitely. However, where there is evidence that this may not have been so, that evidence must be taken into account.

[39]The Employment Appeal Tribunal (Elias J, President) then gave further guidance on this is Software2000 Ltd v Andrews and ors

2007 ICR 825

. He held that:(a) in assessing compensation for unfair dismissal, the employment tribunal must assess the loss flowing from that dismissal, which will normally involve an assessment of how long the employee would have been employed but for the dismissal

(b) if the employer contends that the employee would or might have ceased to have been employed in any event had fair procedures been adopted, the tribunal must have regard to all relevant evidence, including any evidence from the employee (for example, to the effect that he or she intended to retire in the near future)

(c) there will be circumstances where the nature of the evidence for this purpose is so unreliable that the tribunal may reasonably take the view that the exercise of seeking to reconstruct what might have been is so riddled with Page 11 of 24 uncertainty that no sensible prediction based on the evidence can properly be made. Whether that is the position is a matter of impression and judgement for the tribunal

(d) however, the tribunal must recognise that it should have regard to any material and reliable evidence that might assist it in fixing just and equitable compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence

(e) a finding that an employee would have continued in employment indefinitely on the same terms should only be made where the evidence to the contrary (i.e. that employment might have been terminated earlier) is so scant that it can effectively be ignored.

[40]Applying this guidance, we cannot simply assume that all would have been well if Mrs Harutunian had been given some other, unspecified role. The restriction on her use of a mouse was a very real one. There is nothing scanty about it. Extensive efforts had been made to overcome it, using Dragon and other equipment. And it was a restriction that, as far as we can judge, applied to all potential roles in the organisation. In addition, there had been the previous disagreements with managers, which added to the uncertainty.

[41]In fact, there is a distinct lack of evidence that another role would have been manageable. There was no recent Occupational Health advice, for instance. Different jobs may involve different amounts of mouse work but there is nothing to suggest that that was the reason why Mrs Harutunian applied to these particular jobs so overall it is difficult to understand what difference a new job would have made.

[42]In practical terms, if Mrs Harutunian was given a new role, she would also have been given some time to see if was manageable given her wrist condition. There would have been a period of induction and perhaps additional training too. If the job was more congenial then Mrs Harutunian would certainly have wanted it to succeed. If it was not working out, then the Long Term Ill Health process would have been re-started. Other adjustments would have to have been considered, even if it is hard to know what else might have been tried. The possibility of yet another role would also have to have been considered before a conclusion that the company had no viable roles for her. All this takes time. We are also conscious that the first lockdown of the Covid pandemic began on 23 March 2020. Even without trying this further adjustment her employment ended on 4 March and so any Long Term Ill Health procedure would almost certainly have been undertaken during that difficult period. Page 12 of 24

[43]Overall, we assess that in this other hypothetical role there is a 50% chance that it would not have been a viable long-term option. And if that were the case, her employment would have lasted a further year before the respondent dismissed her fairly and without any further question of disability discrimination.

[44]Those figures of 50% and one year aim to cover a variety of possibilities. It might be that the new role was obviously unworkable and her employment ended sooner. It might have dragged on longer, with intermittent difficulties or absences. We have, for example, no real information about the possibility of an improvement in Mrs Harutunian’s condition. But some assessment has to be made of the likely impact of the respondent implementing the required adjustment, and those figures will at least enable the parties to make some mathematical assessment of the likely losses that flow from the existing findings on liability.

[45]Since there is a 50% chance that Mrs Harutunian was involved in the redundancy exercise, we still have to consider the likelihood that she would have been selected in 2020 or 2021. The redundancy exercise

[46]We heard evidence about the process from Ms Rozanna Austin (HR Manager), and from Mr Ball. Ms Austin’s evidence was an explanation of the two redundancy processes followed. She was not personally involved in either of them so her evidence did not add significantly to the information in the bundle, although it did make it easier to understand.

[47]Mrs Harutunian was not given any scores at the time but Mr Ball gave evidence about the hypothetical scores that (he now says) he would have given to her. There is of course a clear risk that such evidence is self-serving, or that it is affected by the strained relations that existed at the time of the dismissal, or even formed during this process.

[48]A further difficulty was that many of the names of those involved were anonymised to protect confidential information, i.e. those whose pay details had been provided. The respondent had made no application for permission to anonymise these individuals, but no objection was made, and we accepted that this was a reasonable course of action. Mrs Harutunian was able to work out who the individuals in question were, a point we checked on occasion, and did not raise any concern.

[49]She was therefore able to cross-examine Mr Ball at some length over the scores he says he would have applied, and why, together with his evidence about the limited number of alternative roles available.

[50]That cross-examination took over a day. As the previous judgment recorded at paragraph 42: Page 13 of 24 “… The Claimant often make speeches rather than pose questions in a way that was absolutely typical of a litigant in person. When she did so Judge Dyal asked her to reformulate her speech into questions and often assisted her to do so by reframing the gist of a speech into questions for the witness.”

[51]That was also the case at this hearing and we also made efforts to focus the questions on what we regarded as the key points. Having covered those, and with regard to the time available, we curtailed the cross-examination at the end of the third day of the hearing.

[52]In general we were satisfied with the evidence presented by the respondents about the redundancy selection exercises. Despite the concerns about self-serving evidence there was, for example, an abundance of documentary evidence to support how the exercise was actually carried out.

[53]The first exercise commenced in January 2020 and although couched in terms of a Tech Transformation was largely driven by the need to move the work to lower cost centres such as Poland and India.

[54]The organisational charts at the time still show Mrs Harutunian as part of the IT Quality Team because she was in her notice period, but her position has an asterisk to indicate that she was not included in the process.

[55]The Tribunal has already found that her output of change control work was low and a good deal of evidence has already been heard about the limited nature of her role. Nevertheless the case put by the respondent has been that she would have been included in a pool with nine other risk managers (Pool 2) across the Governance Risk and Compliance department. The respondent viewed all these Risk Managers as relatively interchangeable for the purpose of this exercise. That approach is arguable a generous one in the circumstances. Quite a few individuals simply had their roles removed.

[56]The exercise began on 29 January 2020 and consultation meetings took place throughout February. Of the nine managers who actually went through the process only six were needed. Two were made redundant and one, based in the US, went into another role temporarily.

[57]These managers were spread across more than one team. They often had interactions with those in other teams and so would often be in a position to comment on their performance. Each of them was therefore involved in the scoring exercise. There was then a moderation or “calibration” meeting to resolve any differences of view. Scores were either 0, 1, 3 or 5. A 5 meant that they exceeded the expected level, 3 meant they were at the level expected, 1 was for those below the level expected and 0 was given where the assessor had no evidence of the criteria in question. Page 14 of 24

[58]There were six criteria; three related to GSK values and three to technical and specialist competencies. The values criteria were broken down into:(a) accountability,

(b) teamwork, and

[59]The technical criteria involved: (d) evidence of external or internal audit support, (e) facilitating risk discussions with tech colleagues, ensuring pragmatic and fit for purpose governance is put in place; and (f) knowledge and application of the GSK ITMS and SMC tool in regulated environments.

[60]The lowest scoring person who was not selected for redundancy was Person 6, who scored 20. (The relevant figures for each candidate is at page 642). His scores, across those six criteria, were 3, 3, 5, 3, 3, 3. (Those final scores, post calibration, were in fact an improvement on those given by Mr Ball, which were 3, 0, 5, 3, 3, 0, or 14 in total.)

[61]His evidence was that when he carried out his hypothetical scoring exercise for the purposes of his hearing, he would have given Mrs Harutunian a total of just 11, i.e. 3, 1, 3, 1, 0, 1.

[62]We heard a good deal of dispute about these figures. Mrs Harutunian provided evidence of her previous performance, about her pay rises and evidence of experience in different areas. Much of this material was put to Mr Ball, particularly extracts from her CV. However, we preferred his view that this would have been no real difference. CVs are designed to put the best gloss on a person’s experience. They can help, but it is often unclear how much personal experience they had of the particular work and at what level and many of the entries were from some time ago. Mr Ball had to assess each person’s performance in their role and how well they were working to the required standards and values.

[63]More to the point, the process did not involve any of the candidates having such discussions with their line manager. It was left for the line manager to make their own judgement based on their current knowledge of the individual and their activities. There was no general challenge to the fairness of the process, only the way in which the respondent now says it would have scored Mrs Harutunian.

[64]We can however form our own view about the fairness of the scores, taking into account the points made on each side. We are not attempting to set out findings Page 15 of 24 of fact. This is, after all, a hypothetical exercise, but we felt that it would be a useful mental exercise to address the scores in order to assess the prospects of a different outcome. So, taking the six criteria in turn:(a) Mrs Harutunian was given a 3 for accountability. Only three candidates got a 5 - the three most successful overall - and one of those selected for redundancy got a 1. So, 3 is a reasonably good score and means that she was meeting expectations. It is hard to understand exactly what is meant by accountability in this context but a 3 seems reasonable.

(b) She got a 1 for Teamwork. That is lower than anyone else, but we can understand that view. For a long time before her dismissal, relations had been difficult. That was not just on account of the respondent’s failures to make reasonable adjustments. By that stage Mrs Harutunian had asked to stay away from the team, was based on a different floor, and had agreed with Mr Ball that if people asked about her, he would say that she was working on a special project.

(c) She also got a 3 for Integrity. Although one person got a zero (no evidence) the others all got 5. A 3 in those circumstances indicates some doubt or reservation about her integrity and we heard nothing to justify such a view. Hence, a 5 seems to be indicated here.

(d) The technical competencies are even more difficult to assess without a detailed knowledge of the business. The first concerned audit support. Mr Ball gave her a 1 here too. Since this also involved evidence of working with others, that seems to reflect his score on teamwork. No less than four others got a zero, so a 1 is not necessarily unjustified. The fact is that Mrs Harutunian, for one reason or another, had ended up in a role that did not call for audit support. In those circumstances even a zero would be difficult to dispute but we saw no reason to dispute his assessment.

(e) The fifth criteria concerned facilitating risk discussions. That suggests that the respondent was looking for those who were concerned about risks, were willing to flag them up and have a public discussion with those affected. Here, again, Mrs Harutunian was given a zero. This is less easy to understand. The Tribunal’s previous view was that Mrs Harutunian was concerned about risk and was diligent. She is not the sort to person to overlook difficult points. Two other employees got a 1 in this area and one a zero, but we felt that at least a 3 was indicated. The most likely explanation for Mr Ball’s score was perhaps the limited nature of her work at the time.

(f) The final one concerned technical knowledge of the system. Here, Mrs Harutunian was given a 1. She questioned Mr Ball about the fact that some members of staff were scored a 5 because they had knowledge of Smart Page 16 of 24 Control work. For the reasons set out below, Mrs Harutunian would only have been in the team at this time had she been given the chance to work in this area. We did not conclude that there was any automatic connection between this work and a 5. Only those who were designated “Smart Control Owners” were in that category, but we conclude that a 3 would be more appropriate.

[65]If our more generous scores were substituted for those of Mr Ball, Mrs Harutunian would have got a total of 16 – 3, 1, 5, 1, 3, 3 – not 11. That is still some way short of P6, who got 20. To get to his score she would need, for example, to have turned both 1s to 3s. Even then it would be tie-break. We think that is extremely unlikely. There were clear reasons for the lower scores in areas like teamwork which we can see no way round. Nothing is certain however. We cannot exclude that possibility altogether. Overall, we assess that chance at 90%. In that eventuality, Mrs Harutunian’s employment would have come to an end on 30 August 2020.

[66]There were some alternative vacancies to consider. Mr Ball gave evidence about that too. Mrs Harutunian worked at the London head office, GSK House, where there were about 3,000 members of staff at various grades. He went through an exercise in identifying the potential internal vacancies available at the time of this redundancy selection exercise and for the following six months. It began with a list of 1034 positions but many of them were in other parts of the country or elsewhere in the world and many were clearly too junior. Whittling them down in that way, and including those a grade above and below hers, he was able to reduce the possibilities to five. Of these, four were never filled because they were withdrawn. (It seems that there was a general reduction in headcount at the time). We were satisfied by the evidence we saw that these vacancies genuinely existed and were closed without being filled. The only remaining viable alternative was in cyber security which Mr Ball considered would not have been suitable. That was not challenged and so we accept that evidence. Mrs Harutunian had that list as part of the disclosure exercise and did not refer us or Mr Ball to any other possibilities. Nor did she suggest that the net was drawn too narrowly and that she might have been able to relocate or move into other areas of work.

[67]She did submit the role in data privacy should have been on that list and so the list it was defective. She says that she asked Mr Ball about that but we have no record of it. The list, however, covers vacancies which are posted from 2 December 2019 onwards, and the data privacy role was certainly open in November. We conclude that it had been filled by the end of January, when the redundancy selection exercise began. Hence, the odds of remaining are unaffected by the chance of an alternative role.

[68]What would have happened if that 10% chance of surviving the 2020 redundancies had been realised? The respondents then invite us to consider the effect of the next redundancy exercise in June 2021. Given the percentages involved, it is not necessary to explore that second exercise in the same detail. We are looking at Page 17 of 24 a 50% chance of being involved in the redundancies and then 10% chance of getting to the next redundancy round, so a 5% chance overall.

[69]Suffice to say, we accept the evidence put forward by the respondent that by this time Mrs Harutunian would have been in a pool of 13, from which only six were retained. Those six were broadly those who, we have already accepted, were stronger candidates and so, being pragmatic, we simply assess the prospects of her surviving that second exercise as zero. If she had reached that stage of the process her employment would have ended on 31 August 2021.

[70]Summarising matters therefore, with the risk of some artificiality, we have divided the potential outcomes into four:(a) An 45% chance of being made redundant in the January 2020 exercise (90% of 50%)

(b) a 5% chance of being made redundant in the 2021 exercise

(c) a 25% chance of being fairly dismissed on grounds of capability a year after her termination date, i.e. 4 March 2021 (50% of the 80% chance of being redeployed), and

(d) a 25% chance of Mrs Harutunian staying in post longer than that.

[71]There is still a duty on employees who are dismissed to mitigate their loss by looking for other jobs. That may also limit the compensation payable to Mrs Harutunian. If we were to conclude that a reasonable period for that exercise was, for example, a year, that would set a limit of a year’s pay on the financial compensation available, so it would make no difference whether Mrs Harutunian fell into category (c) or (d) above.

[72]We would just add that it is far from clear that the claimant would have been particularly disadvantaged if she had been included in the redundancy processes. If she had been made redundant in 2020 she would have been entitled to a contractual redundancy payment of £95,895. That is over two years’ net pay. The ACAS Code

[73]The next issue concerns the ACAS Code of Practice on Disciplinary and Grievance Procedures. Although the events in question were alluded to in a witness statement for the respondent (Ms Austin) and by the claimant herself, we did not allow further cross-examination on that issue as it is fully covered in the judgment. Instead, the parties made submissions on the point, the respondent on the first afternoon and Mrs Harutunian the following morning. Page 18 of 24

[74]The relevance of the Code was considered at an earlier preliminary hearing before Employment Judge Martin on 15 and 16 December 2021. She recorded the relevant issues in an agreed list which stated: “Should the Tribunal uplift/decrease any award because of any unreasonable failure by the R1 or C to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures. C refers to the extended delays to hear her appeals against the outcome of her grievances.”

[75]Hence, we confined the submissions to that final point. We are not concerned with the Code of Practice on Disciplinary Procedures. Mrs Harutunian was not disciplined and so that section of the Code has no application at all.

[76]The relevant passages of the judgment which relate to this aspect are as follows: 175. … The Claimant appealed the grievance outcome on 15 October 2019. …188. On 27 February 2020, the Respondent invited the Claimant to an appeal hearing to take place on 2 March 2020. It was a hearing to deal both with the appeal against the grievance outcome and the appeal against dismissal. The meeting did not go ahead partly because of personal reasons in C’s life and partly because Mr Lord was not available.

189. There was a significant back and forth trying to arrange mutually convenient dates and a dispute also emerged over whether the appeal against the grievance outcome should be heard on the same occasion as the appeal against dismissal [notice of which was given on 4 December 2019].

190. In late March, Ms Austen, attempted to schedule the appeal hearing several times, with no response. It transpired that there had been a bereavement in the Claimant’s family. In May 2020, Ms Austen tried again to schedule the appeals. The Claimant did not further respond. No appeals therefore took place.

[77]The above is all taken from the findings of fact section of the judgment. The conclusions then stated: “290. Further, the Claimant had a fair opportunity to raise concerns in the form of her speak-ups and grievances. The Respondents did a reasonable job of dealing with those matters. At various times they stalled and protracted significantly. Again that was essentially because of the Claimant’s approach to them. There were many delays in her providing information, particulars and documentation. When she provided documentation it was often so heavily redacted it was meaningless.”

[78]The delay was therefore from 15 October 2019, when Mrs Harutunian appealed, to 27 February 2020 when she was invited to an appeal meeting, a period of over four months. Page 19 of 24

[79]The ACAS Code states that: “Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions.”

[80]The company’s position was that the grievance was intertwined with the Long Term Ill Health procedure which ultimately led to the dismissal, and that there were no findings to support a conclusion that the respondents were at fault. Mrs Harutunian was clearly of the view that the delay was unreasonable.

[81]What then was the significance of the grievance process in the context of this case? It has no obvious connection with Mrs Harutunian’s dismissal or the finding that it was an act of discrimination arising from her disability. The judgment records that there were various strands to her grievance. We asked her during her submissions what the main concern was, and why she attached such importance to the grievance appeal and she responded that it was about the way the respondent handled the Long Term Ill Health process and that if her appeal had been successful then she would have remained within the organisation. That conclusion does not in fact follow. If her appeal against dismissal had been allowed then clearly she would have stayed on, but the grievance appeal would have taken place sometime after her dismissal and if successful would perhaps have resulted in an acknowledgement or apology on the part of the company that some aspects of the process had not been well-handled. But there was nothing in the ultimate judgment to endorse that view. The main finding was that the decision to dismiss was unfair and unjustified given that there were other roles that Mrs Harutunian could have done. There was also a finding that a more upto-date Occupational Health report should have been obtained. Otherwise, as noted at paragraph 290 of the judgment, the respondents did a reasonable job with regard to the process

[82]Overall, we take the view that paragraph 290 above – in particular the conclusion that the respondent did a reasonable job of dealing with Mrs Harutunian’s grievances - essentially disposes of this issue. A reasonable job means that they did not unreasonably delay the appeal.

[83]The relevant circumstances include the fact that the grievance process itself began with a ‘speak up’ in August 2018 followed by a formal grievance submitted in January 2019, so the process as a whole lasted about 18 months. The time spent in arranging the appeal hearing has to be seen in that context and the judgment as a whole makes clear that the claimant was largely blamed for the delay in progressing the grievance which was closely intertwined with the Long Term Ill Health process. Page 20 of 24

[84]There is also the fact that Mrs Harutunian did not ultimately attend the grievance hearing, which certainly lessens the importance that can be attached to this issue and its urgency.

[85]We were referred to some evidence from Mrs Harutunian to the effect that it was the employers insistence on dealing with both appeals on the same day that caused the delay but even this does not strike us as unreasonable in circumstances where the grievance was about the way in which the Long Term Ill Health process had been handled. It was sensible to deal with them on the same occasion and inevitably that would involve some small additional delay in setting aside a longer period of time for a hearing.

[86]If we are wrong about the unreasonableness of the delay, we are still of the view that it would not be just and equitable to increase the amount of compensation. Fundamentally the grievance was about poor procedure on the part of the respondent, which was not ultimately substantiated, and if there were any such concerns they did not directly affect the fairness of the dismissal or aggravate in any way the conclusions reached in relation to disability discrimination.

[87]On that basis we conclude that there should be no uplift in compensation for failure to comply with the ACAS Code of Practice. Injury to Feelings

[88]We now have to assess compensation for injury to feelings. We remind ourselves that the purpose of such an award is compensation rather than to punish the employer.

[89]The general guidelines that apply to compensation in discrimination claims were set out by the Court of Appeal in Vento v Chief Constable of West Yorkshire Police

2003 ICR 318

, CA. These guidelines provide for three broad bands:(a) a top band applicable to the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment;

(b) a middle band applicable to serious cases that do not merit an award in the higher band; and

(c) a lower band applicable to less serious cases, such as might be expected where the act of discrimination is an isolated incident or one-off occurrence.

[90]The focus in each case is not on the extent of wrongdoing by the employer or its staff but the impact this had on the employee.

[91]The President of the Employment Tribunals issues periodic guidance on the appropriate award in each Vento band, beginning on 6 April each year. This claim Page 21 of 24 was submitted on 2 April 2020, just before that date, so the appropriate rates are those which applied from 6 April 2019:(a) awards in the lower band should fall between £900 to £8,800;

(b) awards in the middle band should fall between £8,800 to £26,300; and

(c) awards in the upper band should fall between £26,300 to £44,000, with the most exceptional cases capable of exceeding that upper limit.

[92]Our difficulty in approaching this task is that we have heard very little evidence from Mrs Harutunian. It is of course a difficult thing to give evidence about, to explain to people how injured your feelings were, how it affected your life, your relationships, your self esteem. All these things are very personal matters. But equally, the only person who can tell us those things is Mrs Harutunian. We find ourselves in the position that we have to infer the injury to feelings that she suffered from the criticisms she has made of the respondent. The things she emphasized in her submissions to us this morning were about the way she was dismissed, particularly the fact that she was escorted off the premises. She went into some detail about her efforts to re-gain access to the building, as agreed, to look for, jobs internally over the following few days, and about having to lobby HR to have her access to the system restored. She described to us that it was feeling like being shut out of her own house. This reflected her long service with the company, essentially, her entire career. She also emphasised her record in the job, with appraisals referring to her outstanding performance, at least as late as 2015.

[93]Another point was that she was requesting to work with Smart Controls from 2018 onwards, while seeing others regularly preferred to her, which we also accept must also have been demoralising.

[94]Despite the lack of direct evidence, the respondent has not adopted any sort of artificial position that these damages should be nil or very limited. The suggestion in Ms Bell's written submissions is that it would fit appropriately in the middle of the middle band.

[95]In support of that submission, she referred us to a number of cases cited in Harvey on Industrial Relations and Employment Law. It is never an easy task to make comparisons with other cases, not least because, as we have emphasised, the point is not how the employer behaved but the effect it had on the employee. But, all of those cases are tightly grouped and are very closely comparable in terms of the facts. They have been well selected.

[96]We were referred in particular to the first instance decision in D’Silva v Croydon Health Services (2303516/2019). In that case, the respondent's witnesses demonstrated a lack of understanding of the duty to make adjustments and were Page 22 of 24 careless and insensitive to the claimant's disability. That attitude pervaded the process. They should have found the claimant a non patient-facing role, i.e. an alternative role that she was able to manage. As a result she was awarded £20,000 for injury to feelings. That case is very similar to this one. What perhaps makes the treatment of the employee rather worse in that case is that after the involvement of HR the treatment of the claimant was high handed and unsympathetic, and there was an institutional denial of their responsibility to make adjustments. All of that resulted in the loss of her job, as here. Overall, it is a very comparable case.

[97]The aspects in Mrs Harutunian’s case which appear to be particularly marked from her point of view are her long service, performance, the long-standing failure to offer her smart controlled work, and the manner of the dismissal, which she likens to a gross misconduct case.

[98]On the other hand, the respondent showed a good deal of patience in other respects throughout the process. The Long Term Ill Health process was long and thorough. There was a good deal of patience shown over various meetings, when it was quite plain that Mrs Harutunian was not engaging with the process and seeking to delay it. The main focus of the respondent throughout 2018 and 2019 was on getting Dragon dictation software to work, with extensive training and support. So, overall, there is certainly much less scope for criticism of the respondent in this case than the D’Silva case, just mentioned, and certainly no basis for a claim of aggravated damages. Conveniently, that case also fell within the same financial year as this one and so the same Presidential Guidance applies to the bands.

[99]Given all that, we conclude that the respondent's proposal, that the appropriate figure is the middle of the middle band, is a sensible one. There is always a temptation for tribunals to split the difference between the proposals on each side, and Mrs Harutunian was seeking a figure in the upper band, or above, but sometimes that temptation has to be resisted. Here, the respondent has made a fair and considered proposal, which is supported by comparable cases. On that basis, we adopt the figure in the middle of the Middle Band, of £17,550.

[100]We take the date of the injury to be 4 December 2019 and the date of calculation is 27 January 2025. Interest has to be calculated at the rate of 8% in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. Interest on that sum is therefore £7,235. So overall, the combination of interest and injured feelings would be £24,785.

[101]It remains to assess the financial loss, having regard to the remaining issues, which concern: Page 23 of 24(a) when her employment would have come to an end if none of the reasonable adjustments had been successful, i.e. whether it would have continued indefinitely or come to an end on health grounds or for some other reason;

(b) the amount of any benefits received in that period;

(d) the value of her remuneration, including her loss of pension and other benefits.

[102]Once these points have been determined they will need to be applied to the four scenarios set out at paragraph 70 above, and the relevant percentages applied to each calculation.