Ms K Coulton v Bewbush Community Nursery: 2301541/2017

EMPLOYMENT TRIBUNALS

Case No 2301541/2017

Between

Ms K CoultonClaimant

Bewbush Community NurseryRespondent

Before

Employment Judge Webster

Ms G Crew (instructed by Counsel) for respondent

Date 5 April 2019

JUDGMENT

[1]The claimant was disabled in relation to her conditions of OCD and anxiety. The tribunal was provided with insufficient evidence to conclude that she was disabled by reason of her learning difficulties.

[2]The Claimant’s claim that the respondent failed to make reasonable adjustments which placed her at a disadvantage because of her OCD and anxiety is partially upheld.

[3]The Claimant’s claim that she was victimised because she brought tribunal proceedings or threatened to take tribunal proceedings is not upheld.

[4]The Claimant’s claim that she was subjected to harassment related to her anxiety and OCD is partially upheld in that we find that the respondent’s comments that she ought to stand on her own two feet as opposed to rely on her parents amounted to harassment related to her disability.

REASONS

[5]By an ET1 dated 20 June 2017 the claimant brought claims of failure to make reasonable adjustments, disability related harassment and victimisation. Those claims were then expanded upon by three documents dated 25 September 2017 titled:(i) Claimant’s examples of harassment

(ii) Claimant’s examples of reasonable adjustments

(iii) Claimant’s examples of victimisation

[6]By an ET3 dated 11 August 2017 the respondent refuted those claims. The respondent stated that they did not know that the claimant was disabled at the relevant time and had not subjected her to the treatment alleged related to her disability.

[7]On 1 September 2017 a preliminary hearing established a list of issues which were confirmed and expanded on with the parties during this hearing (see below). Subsequent to that hearing and a production of medical evidence by the claimant, the respondent conceded that the claimant was disabled for the purposes of the Equality Act 2010 by reason of anxiety and obsessive compulsive disorder (OCD).

The Hearing

[8]At the outset of the hearing whilst confirming the issues to be decided by the Tribunal, it became apparent that the claimant was also relying upon learning difficulties as part of her disability status. The respondent stated that this had not been raised at the preliminary hearing nor was it addressed in the statement of disability produced.

[9]On examining the documents the Tribunal found that the claimant had not referred to learning difficulties in her ET1 or the 3 additional documents (statements of harassment, reasonable adjustments and victimisation) submitted to the respondent and the tribunal on 25 September. However, it is clearly referenced and evidenced in the claimant’s ‘Statement of Disability’ which was also submitted on 25 September. The tribunal therefore concluded, despite objections from the respondent, that it needed to consider whether the claimant was disabled for the purposes of the Equality Act 2010 and whether any of claimant’s claims were made out in relation to this disability as well as those of anxiety or OCD.

[10]The respondent was given the opportunity to consider whether it conceded disability regarding the learning difficulties. The respondent’s representative helpfully took a pragmatic approach. It was conceded that the claimant had suffered from learning difficulties that, whilst she was at school, could have constituted a disability. However the respondent did not concede that she was disabled by this condition at the relevant time, nor did they concede that they had known that she suffered from that condition at the relevant time.

[11]The tribunal heard from 5 witnesses; the claimant, Dr Coulton, Amanda Webb, Linda Godley and Emily Worsfold. All witnesses provided written witness statements and gave evidence in person to the tribunal.

[12]The tribunal was provided with 2 lever arch bundles of documents. It was apparent at the beginning of the hearing that the claimant’s representative was seeking to use a different bundle of documents. It was established that in fact he was using the same documents but differently ordered. The tribunal insisted that any document references were made to the same bundle and this was agreed.

[13]By agreement the respondent handed up more documents on the second day which related to the claimant’s learning difficulties which had previously not been part of the bundle.

[14]The Issues were agreed with the parties at the outset of the hearing.

The Issues

[15]Was the claimant a disabled person for the purposes of the Equality Act 2010 with regard to her condition of learning difficulties?

[16]Was the respondent aware or ought reasonably to have been aware that the claimant was disabled by reason of any of the three conditions at the material time? Failure to make reasonable adjustments contrary to sections 20 and 21 of the 2010 Act

[17]Was there a provision, criterion or practice applied by the respondent namely:(i) Not to allow employees to be accompanied to meetings and

(ii) Not to hold meetings with an employee’s chosen companion after the employee had resigned

[18]If the PCPs were applied by the respondent was the claimant placed at a substantial disadvantage in comparison to a person who was not disabled. The claimant says that she was disadvantaged because her condition means that she was unable to deal with meetings on her own.

[19]If so would it have been a reasonable adjustment to:(i) Allow the claimant to be accompanied to the meetings and

(ii) To hold a meeting with her chosen companion (her father) after she had resigned.

(iii) Conducting the disciplinary, appeal or grievance meeting in a way which does not disadvantage or patronise me

(iv) Explaining the significance and potential consequences of disciplinary hearings

(vi) Ensuring that formal procedures were followed properly

(vii) Disciplinary appeal and grievance meetings are documented with a fair degree of flexibility

(viii) Sufficient notice given of disciplinary appeal and grievance meetings is given so that I am able to prepare in advance

(ix) Full and detailed information of the disciplinary, appeal and grievance meetings is given in advance. Victimisation

[20]The protected act relied upon by the claimant was her ET1 dated 20 June 2017. During the hearing it became apparent that the claimant was also relying upon her threat to take legal action in the letter dated 24 May 2017. The respondent admitted that both are capable of being protected acts within the meaning of section 27(2).

[21]Whether the respondent subjected the claimant to a detriment because she had done the protected act.

[22]The detriments relied upon by the claimant are:(i) The allegedly unfair reference given to other nurseries namely Banana Moon, Daisy Chain and Tinies.

(ii) The DBS referral on 15 June 2017. Harassment contrary to section 26 of the 2010 Act

[23]Whether the respondent engaged in unwanted conduct relating to the claimant’s disability, The claimant says that the unwanted conduct was:(i) The manner in which the return to work meeting on the 16th March 2017 was conducted

(ii) On an occasion the claimant was told in a very patronising manner that if she had flu she should be at home in bed.

(iii) When the claimant has asked her father to help he she was told by the respondent that she was old enough to stand on her own two feet and not involve her father

(iv) On the 24th May 2017 she was told off for using her mobile phone

(v) Being told by the respondent at the appeal hearing that perhaps she should look for another job outside childcare since she was not very good with children

(vi) On dates unknown the claimant says she was made to feel guilty when she asked to rearrange her shift so she could attend hospital for venesection.

(vii) Not being allowed to take a full week’s holiday during February or march 2017.

[24]Whether the unwanted conduct had the purpose or effect of creating an intimidating hostile degrading humiliating or offensive for the claimant. General observations

[25]The claimant was a helpful and truthful witness. When asked questions she answered them in a straightforward way without trying to embellish matters. We concluded this largely because she answered questions which frequently contradicted what her father (also her representative) had said or was trying to suggest.

[26]We found that the poor relationship between Dr Coulton and the respondent was pivotal to what had happened during the claimant’s employment. We found that Dr Coulton whilst ostensibly trying to assist his daughter, who clearly required support, soured relationships between the claimant and the respondent because he thought he knew what the respondent ought to be doing and when. He appeared to feel entitled to tell his daughter’s employer, with whom he had no direct relationship, how they ought to treat her but did not feel he needed to explain his involvement.

[27]It was a running theme both during the hearing before this tribunal and his daughter’s employment with the respondent that he made assumptions as to what people knew about his daughter’s conditions, what the law was with regard to various policies and procedures and what his intentions were when getting in touch with the respondent on his daughter’s behalf. Those assumptions were frequently wrong and damaging. At times the tribunal believed that this was more his case against the respondent than his daughter’s.

Findings of fact

[28]The claimant was employed as a childcare practitioner by the respondent from 6 April 2016 until 26 May 2017. The respondent is a Community Interest Company which provides childcare services for early years children aged between 3 months to 8 years old.

[29]The claimant has been diagnosed with Obsessive Compulsive Disorder, Anxiety and various learning difficulties which were not specified. The respondent conceded that the claimant was disabled for the purposes of the Equality Act 2010 at the relevant time with regard to the OCD and Anxiety. They did not concede that she was disabled by reason of Learning Difficulties at the relevant time. The respondent stated that it was unaware of all the conditions relied upon at the relevant time.

[30]During her employment the claimant was given a written warning for her sickness absence levels. As a result of the way this was handled the claimant looked for another job and was offered another role at a different nursery, subject to references. She resigned from her role with the respondent but the new job offer was subsequently rescinded after the respondent provided a reference to the potential new employer. The respondent refused to allow the claimant to continue working with them beyond her notice period.

[31]During the claimant’s notice period a child escaped from the nursery premises. Following an investigation the respondent concluded that the claimant was probably responsible for the child escaping and referred the claimant to the DBS.

[32]When the claimant attended an interview for the respondent she accepts that she did not tell the respondent directly or in her application form that she suffered from any health conditions.

[33]The claimant says that she told the respondent shortly after she started working for them that she suffered from anxiety and OCD. She says that she told them that she got anxious, that she took medication and that she liked to keep things clean. She says that she knows that she told them this because it was agreed that she could go out and take a 5 minutes break if she found herself getting too anxious. It was also agreed that her managers should tell her to just ‘Stop and calm down’ if she appeared to be getting anxious. The respondent witnesses agreed that this was what had happened.

[34]The claimant also stated that a medical report was delivered, along with various other key documents, by her father, to the respondent shortly after she started work which gave significant detail or her various conditions. It was a report that was prepared for Ofsted and would have been submitted to Ofsted. The respondent witnesses stated that they knew that such reports were prepared and that they would all have had similar reports prepared about themselves but that they were sent to Ofsted and that they had not seen their own reports. They said that obtaining a copy of this report about staff members was not standard practice and was not necessary.

[35]The respondent witnesses said that not only had it never received that report but that Dr Coulton was mistaken as to the timing of when he had delivered the documents as they were delivered shortly before the claimant had started work. There was significant disagreement over this issue. Neither party had any corroborating evidence one way or the other as to whether this document was delivered.

[36]On balance, we find that the respondent did not receive this report. It had copies of all the other documents on its system. The tribunal accepts the witnesses’ evidence that they did not have a scan of this one. The respondent witnesses gave candid evidence throughout the hearing concerning mistakes that they had made which do not place them in a good light. They were also in disagreement with each other over other key matters regarding what they knew and when about the health of the claimant and therefore we have no reason to doubt their evidence on this matter.

[37]The tribunal does not accept that they deliberately destroyed this document because they had either read it and ignored it or had forgotten they had it and on receiving the tribunal claim panicked and destroyed it thinking it might absolve them. We think the most plausible explanation is that it was never provided to them as it is not one of the documents that they would have asked to see as part of the new starter process. If we are wrong and Dr Coulton did give it to them, then we find that it was not read and not stored in the claimant’s file and we accept did not form part of their knowledge when they were managing the claimant.

[38]Our finding regarding whether the report was given to the respondent is also informed by our findings on the timing of when the claimant’s father says he gave in the report. We find that the documents that everyone agreed were handed in were given to the respondent shortly before the claimant’s employment started not just afterwards as stated by Dr Coulton. We reach this conclusion because the employer would have needed these documents to carry out the relevant security checks on the claimant before she started work for them and the claimant conceded that they had probably been given in just before she started work as well.

[39]Dr Coulton was as adamant about the timing of handing over the report as he was about the fact that he had given the report at all. We therefore find it more plausible than not that he was also mistaken about whether he gave the report to the respondent or not. There was no obligation on him to give the report and whilst he may have intended to we find that he did not.

[40]All three respondent witnesses disputed that the claimant told them she had any medical issues. They say that they were aware she had told them she got anxious sometimes but that they offered her ways of coping with that particularly when her mother got sick. However they all said that they had no idea that this amounted to a medical condition.

[41]Nonetheless, in evidence, Ms Godley agreed that she knew the claimant was on medication. She says that she did not know that the medication was linked to the anxiety but she also agrees that she did not ask the claimant about this. This was in contrast to the other respondent witnesses who maintained that they did not know she was on medication. We have no reason to doubt Ms Godley’s evidence that she somehow knew the claimant was on medication and we accept that she did know that the claimant took medication.

[42]Much was made by the claimant’s representative that the respondent was under a duty to check whether the claimant was medically able to work for them and that their failure to do a proper medical check was in breach of those statutory obligations. We disagree. The evidence provided to the tribunal to indicate that the respondent was under such an obligation did not apply to organisations such as the respondent. Besides it was not in question that the claimant could carry out her job regardless of her conditions.

[43]A letter was sent to the respondent by the local authority (pg 371) which stated that they had records confirming that the claimant suffered from anxiety and asking them to confirm what, if any, adjustments were being made for her.

[44]The respondent witness conceded that she had misread the letter and thought that it said that the claimant had numerous conditions including dyslexia. Therefore when they asked the claimant about the letter they asked her whether she had dyslexia and a number of other conditions to which the claimant understandably answered no. The respondent therefore noted that this issue had nothing to do with the claimant which was incorrect.

[45]The claimant agrees that she did not tell the respondent about having learning difficulties. However she says that they ought to have known because she attended a local school that only took people with learning difficulties and because her qualifications came from there. However all three respondent witnesses denied knowing that the school only took children with learning difficulties and that they did not know that the claimant had had learning difficulties. We accept that they did not know that the school only took children with learning difficulties nor that they ought to have known about it. The claimant presented her qualifications and her previous work history and we see no reason as to why the respondent ought to have questioned how she obtained them.

[46]The tribunal concludes that the claimant continues to have learning difficulties as referred to in the Learning Assessment Centre reports. From our limited knowledge of learning difficulties we are aware that they are unlikely to improve over time. No real detail was provided as to what the ‘learning difficulties’ were or how they impaired the claimant specifically. They stated that the claimant had a lower attainment and understanding levels than others her age but not what this actually meant in terms of her ability to function outside of school.

[47]The tribunal was given very little information about the impact that these conditions had on the claimant’s ability to carry out day to day activities at the relevant time i.e during her employment with the respondent as opposed to the impact they had on her ability to learn at school. All the claimant’s evidence about her work life focussed on the anxiety and OCD.

[48]The claimant’s father sought to state that she was incapable of engaging with certain aspects of adult life such as banking, reading payslips and managing her own time. However, the claimant gave little or no evidence on these issues herself. The respondent stated that she worked well during her time with them including her record keeping and her ability to interact with staff and children. This was not disputed by the claimant or her father. The claimant agreed that she had managed to gain several qualifications and work since she left full time education. She was working at a pub at the time of the hearing and gave no evidence of experiencing difficulties with that job. She also gave no evidence of other aspects of life that she found difficult because of her learning difficulties in the disability impact statement or her witness statement. Further she gave no evidence that she agreed with her father’s assessment of her ability to engage with adult life. Sickness absence

[49]It was not in dispute between the parties that the claimant was off sick with a stomach bug from 8 March 2017 until her return on 16 March 2017. She had previously had various periods of absence of varying lengths which were all due to common ailments such as colds, stomach bugs etc. It was agreed by the parties that none of the conditions related to her anxiety, OCD or learning difficulties.

[50]It was also not in dispute that on her return to work she was called into a meeting without notice and given a written warning for her sickness absence. The written warning was given because the claimant had had more than a certain number of days off in a certain period of time which automatically triggered the claimant’s sickness absence policy and a written warning.

[51]The claimant and her father, even at the tribunal hearing, maintained that she was disciplined because, amongst other things, the respondent did not believe that the claimant’s absence was genuine. The tribunal disagrees. It is common practice for an employer to have a sickness absence process which has certain trigger points which can lead to disciplinary action regardless of the veracity of the ill health. This is clearly what happened in this situation. The sickness was also clearly unrelated to the claimant’s various health conditions.

[52]The respondent’s witness Ms Webb said in evidence that the meeting had been a return to work meeting and not a disciplinary hearing and that therefore there was no need for them to give the claimant notice of the meeting or the right to be accompanied. She accepted that, in hindsight, the meeting should have followed a different process and that her actions were in breach of the respondent’s own sickness absence process and return to work meetings. She said that she had been entirely unaware of that at the time she held the meeting. It was not in dispute that the respondent’s policy in fact stated that the claimant ought to have been allowed to be accompanied at the meeting and the first stage ought to have been a meeting where the claimant was told that her absences were a concern and sympathetically managed. Ms Webb also accepted, in response to a question from the tribunal, that a meeting at which a disciplinary sanction was meted out, was inherently a disciplinary meeting.

[53]Ms Webb maintained that the claimant had not been subjected to any disadvantage because of the failure to give notice or allow her to be accompanied because the claimant was well able to articulate her feelings about the situation and did so. The claimant’s concerns were based around the fact that her absence was genuine and therefore ought not to have been disciplined. All of the respondent witnesses maintained that this meant that no adjustments would have changed that because any points made by the claimant or her father would have been about the genuine nature of her ill health and nothing else.

[54]The claimant disputed this. The claimant’s father gave evidence stating that had he been able to accompany her he would have pointed out that they were not following their own policy and that the first stage of the process should have been that she was spoken to supportively about her absence levels and no sanction imposed.

[55]We find that the respondent did act in breach of its own policies. It ought to have given the claimant notice of the meeting and it ought to have given her the right to be accompanied at that meeting. This was clearly a disciplinary meeting and the respondent knew that they were going to discipline the claimant before the meeting took place.

[56]The claimant was informed of the outcome of the meeting and appealed against the outcome by letter dated 30 March 2017. An appeal meeting was held on 12 April 2017. It was not in dispute that the claimant was again not notified of this meeting in advance nor was she told about her right to be accompanied at the meeting. She was asked to attend the meeting on the same day that it occurred with no chance to prepare. The appeal meeting was again with Ms Webb. The respondent, again in breach of its own policies, did not refer the appeal to someone higher up in management to consider. Ms Webb conceded in evidence that it ought to have been referred to Ms Godley.

[57]The respondent witnesses again stated that they felt it would have made no difference as the claimant had the opportunity to articulate what she felt was wrong with the written warning sanction and she expressed that adequately in the meeting. The claimant stated to the tribunal that had she been accompanied her father would have been able to point out the deficiencies in the process which she did not do.

[58]During the claimant’s employment, on various occasions particularly when she had been unwell, or when her father sought to get involved with her employment such as over her payslips, she alleges that that she was told to eat properly and to stand on her own two feet and that she found this patronising. She alleges that these comments were made in particular during the return to work meeting and the subsequent appeal.

[59]We conclude that it was likely that the claimant was told on several occasions not to involve her parents to the extent that she was including around the issue of her payslips, her sickness absence reporting and the appeal against her written warning. We think it very plausible that the respondent felt that the claimant ought to take responsibility for her relationship with them including issues surrounding her pay and reporting in when she was not well. We find it likely that they told her in terms such as ‘stand on your own two feet’ particularly when they found Dr Coulton challenging to deal with. It was clear that Ms Worsfold and Dr Coulton disliked each other and no doubt this filtered down to how they spoke to the claimant about each other. We find that Ms Worsfold in particular was frustrated by Dr Coulton’s involvement and that she perceived him as an overbearing parent as opposed to seeing his intention to support his daughter and her need for at least some of that support. She dealt with that perception by telling the claimant to effectively look after herself.

[60]The Respondent accepted that they did discuss the claimant’s diet with her regarding her sickness absencees particularly when so many of them were stomach-related.

[61]The respondent claimed that as the claimant had access to the disciplinary policy she ought to have raised her concerns about the process and had the opportunity to do so. However, given that the respondent witnesses themselves clearly did not know what was in the disciplinary policy and the correct process, we find it unreasonable of them to have expected the claimant to have done so.

[62]The respondent upheld the decision to impose a written warning. As a result the claimant started looking for alternative work because she felt that the respondent operated unfair practices in giving disciplinary warnings for legitimate sickness absences.

[63]The claimant stated that she felt that she was repeatedly picked on regarding the standard of her work. Although evidence was given that she was moved from the baby room due to some concerns, she was moved back into it prior to leaving and there was no evidence provided by the claimant that she was picked on as opposed to just managed. Other than being moved out of the baby room we were not given any examples of ‘repeated’ picking on nor the names of the members of staff she said treated her in this way. We therefore conclude that this did not occur. Banana Moon Reference

[64]The claimant, though an agency (Tinies) was offered a role by Banana Moon nursery subject to references. She accepted the offer and resigned from the respondent. The respondent then sent a reference which stated that the claimant had a written warning on her record. Banana Moon withdrew its job offer.

[65]It was in dispute as to why Banana Moon withdrew their job offer. There was correspondence between the respondent and the agency which had placed the claimant with Banana Moon asking for a context for the reference. The respondent sought to assert that Banana Moon’s concerns were about the claimant’s performance overall and not the final written warning.

[66]It was also in dispute as to whether the respondent had given a negative reference or whether it was a reasonable reference in the circumstances. We find that it was overall an average reference with nothing that would have raised significant alarm bells for a future employer save for the presence of a written warning. Whilst it is true that other areas indicated that the claimant could improve we were provided with no evidence to suggest that such a reference without the written warning would have provoked a phone call much less the rescission of a job offer.

[67]On 17 May 2017 the claimant had a meeting with the respondent to try and withdraw her resignation. The respondent refused to allow her stating that it was their policy not to allow people to return to work for them once they had resigned and worked their notice. The claimant disputed that this was their policy. We find that it was their policy as they gave unchallenged evidence that they had refused other employees reinstatement on several other occasions once they had resigned.

[68]Dr Coulton wrote to the respondent on the same day (17 May) asking for a meeting to discuss the situation. In that letter he stated that the claimant had issues with anxiety and asked for a reasonable adjustment in that he wanted them to have a meeting with him. He specifically requested that they do not discuss the situation directly with the claimant. The respondent did not reply to this letter directly. They said that they did not respond because they did not feel it was appropriate to correspond with Dr Coulton without his daughter’s knowledge. They had no independent relationship with Dr Coulton and did not know whether the claimant was aware of his request for a meeting. We accept that this was part of the reason they did not meet with Dr Coulton. We also believe that by this time Dr Coulton’s interactions with the respondent whether direct or indirectly through the claimant, had by this time started to annoy the respondent considerably and they did not feel that they needed to explain their actions to him.

[69]On 22 May 2017 the respondent wrote to the claimant confirming that her last day would be 26 May 2017 but confirming that the written warning would be withdrawn from her record. There is no explanation of why this happened in the letter. In evidence the respondent witnesses said that they had reviewed their processes in light of Dr Coulton’s letter and realised that they had made a mistake. In evidence, which we accept, the respondent witnesses confirmed that they realised that they had acted in breach of their sickness absence and disciplinary policies and therefore that the claimant ought not to have had a written warning on her record. It was never explained to the tribunal why this revelation occurred at this point as opposed to when the claimant appealed but we believe it must have been because someone higher up in management realised what had happened. All subsequent references have not referred to a written warning. Child escaping from nursery premises

[70]On 23 May 2017 a child escaped from the nursery and was missing for quite some time. His absence was discovered by his family who found him in a local shop. The nursery only realised he was missing when his mother arrived to collect him and told them that she had him with her already. An investigation into how this happened was immediately launched. The investigation unsurprisingly included speaking to all staff present that day.

[71]Subsequently other matters were investigated namely, escape routes, sign out sheets and interview notes. On the day after the incident (24 May) the respondent asked the claimant to attend a meeting with Ms Worsfold and Ms Webb so that they could ask her more questions about the incident. The meeting was part of the wider investigation in which, the tribunal accepts, all members of staff were spoken to on at least one occasion and sometimes more. Before going to the meeting the claimant went to the toilet, just outside the nursery itself but still within the wider school/nursery building, and called her father to tell him that she was being called into a meeting. She appears to have told him that she was going into a disciplinary meeting.

[72]The respondent expressly forbade employees using phones on shift. Ms Worsfold heard the claimant in the toilet using her phone and was angry. At the subsequent meeting which followed almost immediately after she was discovered using her phone, the claimant was told off for using her phone but no disciplinary sanction was imposed. We find that the claimant was however told by Ms Worsfold that it was normally a disciplinary matter and that the claimant using her phone in the middle of the child escaping crisis/investigation was the last thing that she needed to be dealing with (or something along those lines). It was clear from the evidence given by all parties that this was a fraught and emotional meeting.

[73]Part way through the meeting Dr Coulton called the nursery and asked why the claimant had been taken into a meeting unaccompanied. Ms Webb took the call and tried to explain that it was not a disciplinary meeting but an investigation meeting. However it is clear that he was unpleasant during the call and that in the circumstances of the child going missing the previous day, this heightened emotion and accusatory stance surrounding the claimant’s circumstances was not appreciated.

[74]The tribunal finds it likely that voices were raised at the investigation meeting. We also find on balance that it is likely that the claimant was told not to involve her father in the situation and that his involvement was not helping matters. Given his apparent antipathy towards the respondent in his correspondence we find it more likely than not that he had been aggressive and rude during his call with Ms Webb and that this fed into the way the claimant was treated during the subsequent meeting.

[75]After this the claimant went home. Dr Coulton wrote the following day to say that the claimant would not be returning to work for the respondent. It was clear in evidence that this was his decision not the claimant’s. The claimant said that her father had told her not to return to work. The letter went on to state that they would be taking the respondent to the tribunal.

[76]Whilst it was only a passing comment in evidence by Emily Worsfold we believe it is worth noting in our judgment that we find when Dr Coulton delivered the letter to the respondent he handed it to Ms Worsfold and said ‘”you’ve been served”. We find that this is indicative of how the relationship had deteriorated at this stage and how aggressive Dr Coulton had become towards the respondent. This is of note because we believe that Dr Coulton’s role in the relationship between his daughter and her employer contributed significantly to its breakdown. By this stage the claimant’s role had become somewhat overshadowed by her father’s interference and anger at what he saw as his daughter being treated badly.

[77]The Tribunal heard a huge amount of evidence from Ms Worsfold about the investigation that she did. Dr Coulton cross examined her for some time on this topic and challenged the reasonableness of the investigation.

[78]We are not in a position to, nor is it necessary for the purposes of our findings today, to find out whether the claimant was responsible for the child’s escape. Our only role is to decide whether the respondent’s investigation was reasonable insofar as whether it was reasonable for the respondent to find in their report that the claimant was responsible for the child escaping and therefore whether it was reasonable for the claimant to be reported to the DBS in all the circumstances.

[79]Overall we conclude that Ms Worsfold treated the situation with extreme importance and care. The investigation that we were presented with appeared thorough and reasonable. It is correct that there were other possible escape routes for the child as presented by Dr Coulton but they were highly unlikely and CCTV footage clearly showed the escaping child exiting the door behind another family. We accept the respondent witnesses’ evidence that him getting to that outside door could only really have happened in one way. We find that on balance the investigation was reasonable in the circumstances and that given the seriousness of the incident we do not believe that the respondent took steps to undermine the security of its other children by deliberately framing the claimant.

[80]We accept Ms Worsfold’s evidence that she was provided with support and guidance during the investigation and subsequently by the LADO officer from the local authority. We accept that she was told by them that she had to refer her report and its conclusions to the DBS for them to satisfy themselves whether there were any wider child protection issues that needed considering regarding the claimant. We do not consider that she would have referred the matter to DBS without being told to do so. The DBS duly found that there was no further case for the claimant to answer and no further action was taken. Daisy Chain reference

[81]The claimant applied for a role with Daisy Chain nurseries. This application took place between her receiving the respondent’s letter stating that they were withdrawing the written warning and after she had been referred to the DBS. It is worth noting at this point that the respondent did not tell the claimant that she had been referred to DBS. The claimant was not aware of that referral until she submitted these proceedings. She therefore thought that in the absence of the written warning on her record she could apply for another nursery job.

[82]The reference that the respondent supplied was a factual only reference. They chose to do this on the basis that they felt that if they were to give a fuller reference they would have to have disclosed the fact that they had referred her to the DBS. Ms Godley stated that another employee had been offered a job by Daisy Chain on the basis of a factual only reference so did not know why they had not offered the claimant a job on this occasion.

[83]We accept that it is the industry norm in childcare to provide fuller references and it is possible that the failure to provide a full reference was the reason the claimant was not offered this job. However we also find that the reason a factual only reference was given was because of the child escaping and the situation with the DBS referral and the position this placed them in.

The Law

[84]S 6 Equality Act 2010 Disability(1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

(2) A reference to a disabled person is a reference to a person who has a disability.

(3) In relation to the protected characteristic of disability— (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.

[85]S 15 Equality Act 2010 Discrimination arising from disability (1)A person(a) (A) discriminates against a disabled person

(b) (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.

[86]S 20 Equality Act - Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.

(6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.

(7) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A's costs of complying with the duty.

[87]S 21 Equality Act - Failure to comply with duty to make reasonable adjustments(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

(3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.

[88]Schedule 8, Equality Act 2010 states that the duty to make reasonable adjustments arises unless the employer can show that it did not know or “could not reasonably be expected to know" that the employee is disabled or that there was a substantial disadvantage.

[89]Case law and the EHRC Code suggest that knowledge will sometimes be imputed to the employer. The EHRC Code advises that employers must "do all they can reasonably be expected to do" to find out this information.

Conclusions

[90]We were provided with significant evidence that the claimant had been diagnosed with learning difficulties at school and college. The evidence stated that it impacted on her cognitive abilities at school. We accept that it is unlikely that learning difficulties reduce with age and accept that she suffered from an impairment. However both the claimant and her father gave evidence of her educational achievements and it is clear that she holds down responsible jobs. We were given no information as to how the learning difficulties impacted on her ability to carry out day to day activities at the relevant time. Her father gave some evidence that she would have struggled to understand her payslip and the incorrect tax code however we do not find that this is sufficient to establish a significant negative impact on her ability to carry out day to day activities. All the other information given about her abilities was positive. We therefore conclude that we were not given sufficient information to conclude that the learning disabilities were capable of amounting to a disability for the purposes of the Equality Act.

[91]It is not for the tribunal to extrapolate from an old medical report designed for educational purposes, what the current impact of a condition has on an adult’s ability to carry out day to day activities. Whilst we accept that we can on occasion make reasonable inferences, we did not feel that we had sufficient information on which to make those conclusions today without making huge assumptions regarding the claimant’s cognitive abilities that could be both patronising and discriminatory in themselves. The claimant was given several opportunities during the hearing to establish what the impact of her learning difficulties were on her and/or her ability to carry out day to day activities. She did this in relation to her anxiety and OCD but had chosen not to in relation to her learning difficulties. Was the respondent aware or ought reasonably to have been aware that the claimant was disabled by reason of any of the conditions at the material time?

[92]Given our findings above about the learning difficulties all our conclusions regarding disability refer solely to the claimant’s conditions of OCD and anxiety.

[93]We find that the respondent ought reasonably to have known that the claimant suffered from anxiety and OCD. We base this conclusion on the following evidence:(i) It was accepted that the claimant had said she got anxious from time to time. Although Ms Worsfold said that she did not know this was a medical condition, it is clear that they knew she got anxious.

(ii) Ms Godley accepted in evidence that she knew the claimant took medication. She says that she did not ask or know what is for but she did not know that the claimant was taking medication for a specific condition.

(iii) Ms Godley also states in her witness statement paragraphs 18 and 19 that the claimant took 5 minutes out when she got stressed and raised her voice at the children when she got stressed. She says this was not often but also says it happened maybe once a week. The Tribunal considers that once a week for such behaviour is a lot and regular and should have given the respondent more than pause for thought particularly in a setting with young and by all accounts behaviourally challenging children.

(iv) They received the letter at pg 371 from the Local Authority stating that they had on record that the claimant suffered from Anxiety. We accept both the claimant’s and Ms Worsfold’s evidence that the content of the letter was misread and misrepresented to the claimant by accident. Nonetheless it is clear that the respondent was informed, in writing, by the local authority that the claimant had anxiety and that adjustments might need to be made for her. Misreading the letter should not be a defence to whether they ought reasonably to have investigated this situation further. They ought reasonably to have been expected to read the letter properly and to investigate it further.

(v) Although given less weight, we do think that the clear level of parental involvement and interference should have raised significant questions as well given the context of an employee who was frequently taking time out for stress, who had told them she was anxious, who was on medication and whose local authority had sent a form stating that she had a condition and querying what support she was receiving as a result.

[94]In coming to our conclusions as to whether the respondent ought reasonable to have known about the claimant’s conditions of OCD and Anxiety we have considered the EHRC code and the various cases on this matter. The EHRC Code advises that employers must "do all they can reasonably be expected to do" to find out this information, although it emphasises that "when making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially" (paragraph 6.19).

[95]We do not believe that the respondent took any steps to find out anything about the claimant’s health in this case. They were clearly told that she had anxiety and was on medication. We accept that they must respect an employee’s privacy but it would have been reasonable, when Ms Godley found out that the claimant took medication, for her to enquire confidentially why she was on that medication. Further, in light of the various behavioural issues we have concluded above we find that the respondent ought to have asked what caused the claimant to need such frequent times out, to raise her voice so often and to take medication, particularly in light of her telling them that she had anxiety.

[96]Ms Worsfold and Ms Webb both stated that they did not know ‘anxiety’ was a condition capable of being a disability. However they work in a nursery environment with children with challenging behaviour and we are sure that they would have come across a variety of mental health conditions in such a role which we are surprised would not include anxiety in some way being recognised as a medical condition.

[97]Even if we are wrong in that (and to be fair this was not put to them in the course of the hearing) and anxiety did not mean the same to them as perhaps depression or another mental health diagnosis, they did not at any time try to find out what it meant despite the claimant’s disclosure to them that she needed regular ‘time out’ as a result of this condition, despite one member of staff knowing she took medication for ‘something’, and despite the local authority writing to them asking them what reasonable adjustments they were making for the claimant. Ignoring all of those indicators along with the claimant’s behaviour in the work place was not reasonable in all the circumstances.

[98]The requirement to make reasonable enquiries was then, in our view, redoubled by the arrival of the Local Authority letter informing them of her anxiety. Their failure to deal with this properly amounts to a failure to do all that could reasonably be expected of them in the circumstances.

[99]Our conclusions follow the EAT’s reasoning and findings in Department of Work and Pensions v Hall

UKEAT/0012/05

. The EAT upheld a tribunal's decision that an employer should have known about an employee's disability even though she had not specifically informed the employer that she was disabled.

[100]We also consider that this case can be distinguished from the cases where employers have not reasonably known about an employee’s condition. This is not a situation such as in Wilcox v Birmingham CAB Services Ltd UKEAT/0293/1 where the employee refused to provide access to medical records or denied that they had a condition. The reverse is true. The claimant told them that she had conditions and that she took medication. Further the local authority told them in writing that she had anxiety and yet they failed to take any action whatsoever to investigate this further.

[101]The most recent case on this matter, Donelien v Liberata UK Ltd

[2018] EWCA Civ 129

, the Court of Appeal found that the employer had taken reasonable steps such as asking further questions of its Occupational Health advisers regarding the employee’s health and had held appropriate return to work meetings. They had not ‘rubber stamped’ the advice of their doctors but come to their own conclusion.

[102]However in this case, the employer made no conclusions because they made no enquiries but appeared to either wilfully or ignorantly ignore the various indicators that demonstrated that the claimant was diagnosed with the conditions of anxiety and OCD.

[103]We go on to consider whether they ought reasonably to have know about the substantial disadvantage that any provision criterion or practice (PCP) might have placed the claimant in when considering the PCPs and reasonable adjustments below. Was there a provision, criterion or practice applied by the respondent namely:(i) Not to allow employees to be accompanied to meetings and

(ii) Not to hold meetings with an employee’s chosen companion after the employee had resigned

[104]We have found that it was breach of the respondent’s contractual policies to hold meetings with the claimant without notice, without the right to be accompanied and to give her a written warning.

[105]We find that this was a practice given that both Ms Webb and Ms Worsfold stated in evidence that they did not know that they were acting in breach of their policies when they convened the back to work meeting and the subsequent appeal against the written warning. They would have followed this process in the same way for anyone returning to work after sick leave and triggering the sickness absence meetings as per their policies. The fact that they could not recall whether they did this for others before realising it was the wrong procedure is irrelevant. They were clear that they thought they were following the correct procedure at the time. The fact that Ms Webb tried to state that this was not a disciplinary meeting despite a disciplinary sanction being meted out at the end, shows that at this time their practice was to hold return to work meetings where sanctions were applied without notice and therefore in a way that meant that the claimant could in effect not be accompanied.

[106]We therefore conclude that the practice of holding the meetings without notice and therefore without giving the claimant the opportunity to be accompanied amounts to a PCP in these circumstances.

[107]We do not accept the respondent’s evidence and submissions that had the claimant asked she would have been allowed to be accompanied as demonstrating that this PCP did not exist. Had the respondents been aware of the proper process and applied their procedure the claimant would have been informed of her right to be accompanied and she could have asked. The fact that they applied a different procedure does not mean it is not capable of being a practice.

[108]The second PCP relied upon is the failure of the respondent to meet with Dr Coulton after she had resigned. Dr Coulton wrote to the respondent requesting a meeting with the respondent on 17 May 2017 (pg 380). This request is after the claimant had resigned and after her job offer at Banana Moon nursery was withdrawn because of the reference provided by the respondent. The claimant wanted to be able to rescind her resignation because she could not move on. Dr Coulton wanted to discuss this situation with the respondent. He specifically asked them not to tell the claimant about his letter. The respondent did not respond but wrote to the claimant on 22 May 2017 accepting the claimant’s resignation , informing her that the written warning was being removed from her record and giving her last date of employment with them as 26 May 2017.

[109]We conclude that this was a one-off decision by the respondent in these circumstances. They chose not to engage with the claimant’s father and this does not amount to a PCP. We agree with the respondent’s counsel’s submissions on this point that this is more akin to a reasonable adjustment being sought than a PCP in itself. Further this decision was a decision made in response to a very specific set of circumstances rather than a policy or practice. The respondent decided that they could not meet with the claimant’s father when she herself had not requested it and appeared not to know about it and when they had had multiple difficulties with the respondent’s father prior to this point albeit not as many as they were to have in the following weeks. We conclude that this is not capable of being a provision criteria or practice. This was a decision made in a unique set of circumstances. If the PCPs were applied by the respondent was the claimant placed at a substantial disadvantage in comparison to a person who was not disabled? The claimant says that she was disadvantaged because her condition means that she was unable to deal with meetings on her own.

[110]We find that the respondent’s PCP where the claimant could not in fact be accompanied at the relevant meetings did place her a substantial disadvantage compared to someone without anxiety and OCD. It is acknowledged that many employees find meetings where disciplinary action is taken very stressful. This is no doubt compounded when it happens without notice or the right to be accompanied and a condition of anxiety and OCD must make a situation such as this worse.

[111]We conclude that had the respondent properly taken steps to investigate the claimant’s conditions, then they could reasonably have been expected to understand that having a meeting at which a disciplinary sanction is given out, without being accompanied, would place the claimant at a significant disadvantage when compared to someone without that condition.

[112]The respondent submitted that the claimant was not placed at a disadvantage because she would not have raised anything differently because she was fixated with the fact that her sickness was legitimate and that any sanction was therefore unfair. However we do not accept that. We find that it is perfectly possible that had the claimant been accompanied by another member of staff or possibly even her father given that at that point his relationship with the employer was not as strained, she would have been enabled to ask for the correct policies and had the opportunity to put forward points which would have flagged that the respondent was not following its own procedure regarding sickness absence warnings.

[113]The respondent stated that the claimant was able to articulate her thoughts but it is probable that had she been accompanied she would have been able to do so better or her companion would have been able to consider the situation more clearly. The respondent noted that the claimant shrugged a lot in the meetings thus, they thought, indicating that she did not really care what was happening or have any response to things. The claimant stated in evidence that she shrugged because she was anxious and did not know how to respond to questions. Had she been accompanied this could have been different. It is not a great reach to think that had she been accompanied she or her companion would have asked why she was being disciplined and what the policy for sickness absence/return to work meetings was whereas her anxiety prevented her from engaging with the process on that level.

[114]Was it a reasonable adjustment to:(i) Allow the claimant to be accompanied to the meetings We consider that this would have been a reasonable adjustment particularly given that it was in their written policy and ought to have been what happened in any event. The adjustment would have alleviated the disadvantage.

(ii) To hold a meeting with her chosen companion (her father) after she had resigned. This was pleaded as a reasonable adjustment as well as a PCP. We do not conclude that this was a reasonable adjustment in the circumstances. The claimant’s father by this time had soured relations considerably with the respondent in terms of his dealings with them about the payslips. His letter requesting this adjustment specifically states that they should not communicate with the claimant about the matter and in those circumstances, we consider that it was probably appropriate for the respondent to refuse to meet given the parameters he placed around that meeting and the reasons for it. Had the claimant written and asked to be accompanied and a dialogue engaged with about the possibility of being accompanied by an outside third party where relations were not already strained, then our conclusion might have been different.

(iii) Conducting the disciplinary, appeal or grievance meeting in a way which does not disadvantage or patronise me. We conclude that the respondent ought to have given the claimant notice of both hearings in order to be able to prepare and that this failure clearly disadvantaged her as she would have been able to prepare in a way that alleviated any anxiety and allowed her to think things through and ask for any policies. This adjustment could have alleviated any disadvantage she suffered as a result of not being accompanied. We think it would have been reasonable for the respondents not to tell the claimant to eat properly. Their actions disadvantaged her on the basis that her anxiety affected her confidence and their failure to treat her respectfully as an adult when she suffered from anxiety would have exacerbated that. She has said that her anxiety and OCD meant that she sometimes struggled to communicate. The respondents and notes said that she shrugged in response to some points and we believe that this inability to properly communicate when faced with difficult and critical comments is disadvantageous.

(iv) Explaining the significance and potential consequences of disciplinary hearings We believe that this would have been a reasonable adjustment. Had the respondent explained the purposes of the meeting and again allowed the claimant time to process this information, it would have enabled her to be less anxious and to take part properly in the meetings in circumstances where she was not being accompanied.

(v) Ensuring that the minutes of the disciplinary appeal or grievance meeting were properly recorded and a written copy of the minutes given to me as soon as possible after the meeting so that I was clear of the decision, what was expected of me in the future, and what action I was entitled to take after the meeting. It follows that if the PCP being applied meant that the claimant was not allowed to be accompanied then it follows that her having the minutes of the meeting soon after would have assisted her in preparing her appeal and understanding what the implications of the situation were for her. It is common knowledge that in stressful situations, such as a disciplinary meeting or return to work meeting, people do not always take in all the information given to them at that meeting. Someone suffering from anxiety could, we believe, suffer more from that and had the claimant had access to the minutes she may have been able to properly consider what had happened and seek assistance. However, the claimant submitted a full appeal and the minutes of the meeting would not have assisted that process.

(vi) Ensuring that formal procedures were followed properly It is harder for someone with anxiety to deal with incidents that happen outside the rules. We find that had the respondent followed its policies correctly the claimant would have been accompanied at the meeting and would not in any event have received a written warning and therefore no disadvantage would have occurred.

(vii) Disciplinary appeal and grievance meetings are conducted with a fair degree of flexibility The claimant did not address the tribunal as to what flexibility she required that has not already been pleaded above. We therefore cannot find that something as vague as this amounts to a reasonable adjustment.

(viii) Sufficient notice given of disciplinary appeal and grievance meetings is given so that I am able to prepare in advance. This would have been a reasonable adjustment and is dealt with above. above.

(ix) Full and detailed information of the disciplinary, appeal and grievance meetings is given in advance. Yes all policies ought to have been given and would have alleviated the disadvantage suffered by not being allowed to be accompanied at the meeting.

[115]It is our finding that the respondent’s failure to make those reasonable adjustments to their policy of conducting return to work/disciplinary meetings without allowing her to be accompanied directly resulted in the claimant receiving a written warning. We have concluded that the written warning was a material part of the reasons as to why the Banana Moon job offer was rescinded. We consider it extremely improbable that the offer would have been rescinded had the claimant had a clean disciplinary record as the remainder of the reference was unremarkable albeit not a glowing reference.

[116]Although we have accepted that the telephone call between Ms Godley and those seeking the reference was not solely about the written warning, we believe it is more likely than not that clarification about her employability would not have been sought had she had a clean disciplinary record. Whilst we acknowledge that further information was sought and other parts of the reference were less than brilliant, they were not that negative and we conclude that the existence of a formal written warning had a decisive negative impact. Victimisation

[117]The protected act relied upon by the claimant was her ET1 dated 20 June 2017. During the hearing it became apparent that the claimant was also relying upon her threat to take legal action in the letter dated 24 May 2017. The respondent admitted that both are capable of being protected acts within the meaning of section 27(2) Equality Act 2010 and we agree.

[118]The detriments relied upon by the claimant are:(i) The allegedly unfair reference given to other nurseries namely Banana Moon, Daisy Chain and Tinies.

(ii) The DBS referral on 15 June 2017.

[119]The ET1 was submitted on 20 June after all the references referred to above were provided and after the DBS referral. We therefore find that none of the detriments occurred because of that protected act.

[120]The reference provided to Banana Moon/Tinies predates the threat of legal action in the letter dated 24 May 2017 so cannot have occurred because of the threat of legal action contained therein.

[121]The Daisy Chain reference post-dates that letter. However in the reference provided to Daisy Chain they have removed any reference to the written warning. The claimant stated that although they did not make any negative comments or include the written warning, they provided a factual only reference which did not comply with the references required for people working in childcare.

[122]We conclude that the reason a factual only reference was provided to Daisy Chain was the fact that the claimant had been referred to DBS as a result of the child escaping. We do not believe that it was as a result of the threat of legal action in the letter dated 24 May.

[123]The respondent was faced with a decision as to whether to disclose that they had made the DBS referral which had not yet been concluded, or give no information at all, otherwise they felt that they could have been misleading to the next employer. They chose the latter. Whilst we accept that this may have been in breach of the industry norm in childcare we do not think that it arose in any way because of the claimant’s threat to take possible legal action. The issues surrounding the DBS referral and the concerns raised about the previous reference were more important at that time than the possibility of possible legal action.

[124]The DBS referral arose from the very difficult situation of the child escaping. Whilst a huge amount of tribunal time was spent examining photos and maps of the nursery, we conclude that the investigation into the child’s escape was reasonable in all the circumstances. Whilst we accept that the claimant and her father will never accept any responsibility, we have no evidence to suggest that the nursery’s investigation and conclusions were unreasonable and as per our factual findings above we believe that Ms Worsfold’s investigation was reasonable in all the circumstances.

[125]We accept Ms Worsfold’s evidence that in those circumstances and in accordance with LADO advice they have to refer to DBS. That DBS referral took place before the ET1 and only when they had a vague threat of legal action from the claimant’s father. We conclude that it was clear from all the evidence given that this was an incredibly emotional and worrying time for all the staff at the nursery given the significant implications of the child’s escape. We do not believe that it was unreasonable for them to make the referral given their conclusions and their conclusions were based on a reasonable investigation. We therefore do not conclude that it occurred as a result of the claimant or her father’s threat of legal action in the letter dated 24 May 2017. Harassment

[126]The claimant says that the unwanted conduct relating to her disability was:(i) The manner in which the return to work meeting on the 16th March 2017 was conducted. We do not find that the failure to give notice or disallow her accompaniment was related to her disability. It placed her at a disadvantage but was not related to her anxiety or OCD.

(ii) On an occasion the claimant was told in a very patronising manner that if she had flu she should be at home in bed. We do not find that this comment, if it happened, related to her disability. The comment related to the fact that they were in a childcare environment and that if someone was ill they should not be coming into work. We do not find that it was said in a patronising manner simply that she was told to go home if she was ill which is reasonable in the circumstances and not related to her anxiety or OCD.

(iii) When the claimant has asked her father to help her she was told by the respondent that she was old enough to stand on her own two feet and not involve her father. We find that the various references made to the claimant to stand on her own two feet and do things for herself is related to her anxiety and OCD. She clearly needs additional support and guidance from her parents because of her disabilities and inferring that she was being ‘pathetic’ for needing his help could amount to hostile or degrading treatment or have that effect. Whilst we make this finding we also accept that the way in which the claimant’s father had conducted himself in all his interactions with the nursery meant that it was reasonable for them to not want to have to deal with him.

(iv) On the 24th May 2017 she was told off for using her mobile phone. We do not find that this related to her disability. This related to the fact that she was breaching a very clear policy that staff could not use their phones whilst at work. We do not accept Dr Coulton’s submissions that because she was in the toilet she was not at work. The situation was highly charged and the claimant knew that she should not have been calling her father. Otherwise she would not have gone to the toilet to do so.

(v) Being told by the respondent at the appeal hearing that perhaps she should look for another job outside childcare since she was not very good with children. We were provided with no evidence that criticism of the claimant’s performance at work was either frequent or related to her disability. In any event we have concluded that this comment did not occur as there is no evidence to support that the respondent felt the claimant was not capable of carrying out her job and it therefore we prefer the evidence of the respondent in this regard.

(vi) On dates unknown the claimant says she was made to feel guilty when she asked to rearrange her shift so she could attend hospital for venesection. We were given no information as to how this procedure related to her anxiety or OCD and therefore conclude that it is not related to her disability. She did not give details of how she was made to feel guilty nor why or how it related to her anxiety or OCD.

(vii) Not being allowed to take a full week’s holiday during February or March 2017. We were not told how this incident related to her disability. We understand that she wanted to be able to take leave to spend time with her mother but it is not apparent how this refusal relates to her anxiety or OCD.

(viii) The Claimant was picked on in relation to how she did things. There was no evidence provided of the claimant being constantly criticised and picked on by staff for the respondent. The claimant’s witness evidence gave very little detail of this and it was not put to the respondent’s witnesses that they behaved in this way towards the claimant. We therefore had insufficient evidence to conclude either that this happened and in particular whether it related to her disability.

[127]In relation to the one issue we have found relates to her disability, namely that she was told to stand on her own two feet and that she should not involve her parents so much we have considered whether it had the purpose or effect of creating an intimidating hostile degrading humiliating or offensive for the claimant. We do not believe that the respondents deliberately wanted to humiliate or offend the claimant or create a hostile or degrading environment for her. We believe that their comments were intended to try and minimise the amount of time they had to deal with Dr Coulton and impress upon her the importance of her complying with their rules as opposed to her parents (e.g. she should have called in sick not her mother).

[128]Nonetheless, the claimant obviously does depend on her parents for support because of her anxiety and OCD. The respondent witnesses’ various comments regarding her apparent inability to manage some aspects of her life alone, particularly when said in a manner which was not supportive but was either in frustration (the issue regarding payslips) or in a context where she was being disciplined (her mother calling in sick for her) could, objectively, have had the effect of creating a hostile, intimidating or degrading environment because it meant that she was made to feel bad for needing her parents to support her.

[129]We therefore conclude that in relation to the sole issue of the respondent’s comments about her having to stand on her own two feet and not allow her father to become involved amount to an act of harassment on grounds of disability.

[130]The tribunal was not given sufficient information to make a finding in relation to remedy and therefore a remedy hearing will now be listed. THE EMPLOYMENT TRIBUNAL SITTING AT: LONDON SOUTH EMPLOYMENT TRIBUNAL BEFORE: EMPLOYMENT JUDGE WEBSTER BETWEEN: Ms K COULTON Claimant AND BEWBUSH COMMUNITY NURSERY Respondent APPLICATION FOR RECONSIDERATION

Conclusions

[1]The claimant has applied, by letter dated 1 August 2018, for a reconsideration of the Judgment sent to the parties on 27 July 2018. This correspondence was first brought to my attention by the tribunal administration on 17 October 2018 and I am considering at the earliest opportunity available to me. I understand the concern caused by the delay in this matter being dealt with.

[2]Dealing firstly with the practical points that the claimant’s representative has raised. Firstly he is correct that the hearing took place between 29 January and 1 February 2018 and I apologise for that error. This will be be rectified on the Judgment.

[3]Secondly Dr Coulton raises the fact that the final judgment was not reached by the tribunal until 18 June 2018 some 4.5 months after the initial hearing and this unfairly prejudiced the claimant. A day in chambers was required to give the tribunal the opportunity to properly consider the evidence and reach its conclusion. That additional day was originally listed in early March 2018 but unfortunately one member was unable to reach the hearing due to the weather. Then, due to the members’ availability, the Tribunal administration was not able to list this matter for our consideration until 18 June 2018. Whilst I recognise that this is not ideal, the Tribunal is confident that it had good notes of the evidence and submissions made from which to make its decision.

[4]Turning to the substance of the claimant’s application for a reconsideration. I must consider, under Rule 72(1) The Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 (The Regulations), whether there is a reasonable prospect of the original decision being varied or revoked.

[5]A reconsideration can be made where it is necessary in the interests of justice to do so (Rule 70 The Regulations).

[6]The claimant’s application numbers 35 pages and contends that the original judgment shows that the tribunal’s conclusions were, in summary, perverse, that errors of law were made, that the relevant case law was not considered and that there are many factual conclusions which the claimant disagrees with and states are not supported by the evidence. Further the claimant makes the assertion that the tribunal displayed personal animosity to Dr Coulton and was not welcoming to the claimant and did not make adjustments to the hearing to enable her to be at ease during the proceedings.

[7]There was no animosity towards the claimant’s representative, Dr Coulton, from the tribunal or from me in particular. Dr Coulton ably represented his daughter and was at all times helpful and courteous to the Tribunal. However we found that there was clear animosity towards him from the respondent and we explained our reasons for reaching that conclusion based on the evidence we heard.

[8]We also found that the claimant was a helpful and truthful witness and upheld several of her claims;(i) The tribunal found that the claimant was disabled for the purposes of the Equality Act with respect to her OCD and anxiety.

(ii) We found that the respondent ought reasonably to have known that the claimant was disabled due to her OCD and anxiety.

(iii) We accepted that the claimant suffered from mild to moderate learning difficulties and that this was a lifelong condition. However we found that the tribunal had not been provided with sufficient evidence to reach the conclusion that she was disabled at the relevant time because the claimant had not addressed the impact on her day to day activities as an adult as all the evidence we were provided with related to her abilities or inabilities as a school age student.

(iv) We found that the respondent had failed to make reasonable adjustments.

(v) We found that the respondent had subjected the claimant to harassment related to her disability.

[9]At the beginning of the hearing I told all the witnesses that giving evidence can be difficult and that it was not meant to be an endurance test. It was made clear that any party could request a break at any time. Dr Coulton requested that the claimant’s mother could sit next to her whilst she gave evidence and this was allowed. The claimant requested a comfort break at one point and this was agreed to. Both the claimant and her representative were aware that they could ask for breaks as and when they needed them. The claimant’s evidence crossed the lunch break so the claimant had at least 2 breaks during her evidence. Had she or Dr Coulton asked for more they would have been granted. Had any other adjustments been requested they would have been considered.

[10]Dr Coulton has stated that he feels it would have been appropriate for the Tribunal to have met with the claimant beforehand to set her mind at ease. Firstly this was not requested by Dr Coulton or the claimant at any time and was not raised as an issue at the preliminary hearing with Mr Cheetham or at the outset of the substantive hearing. Further it is not possible for the tribunal to meet one of the parties in isolation due to potential allegations of bias. Dr Coulton may have noted that at no point was the tribunal in the room with any individual from either party during the hearing for this reason.

[11]It is not clear what other adjustments Dr Coulton felt would have been appropriate to put the claimant at ease however as stated above any such request would have been considered carefully by the tribunal at any time during the proceedings.

[12]I have carefully read the application for reconsideration. I consider that the basis for the majority of the claimant’s application is that the claimant and her representative disagree with the factual conclusions of the tribunal. The claimant appears to want to reopen matters that were considered and decided because our conclusions are, in their view, either factually wrong or based on an incorrect understanding of the facts. Those factual conclusions were based on the evidence that was presented to the tribunal at the time. The claimant has not, as far as I can determine, raised any new evidence in the review that would change those conclusions. The evidence referred to in the application was considered during the decision making process.

[13]I note the claimant’s representations that there were errors of law particularly regarding the application of the Equality Act 2010 to our assessment of whether the claimant was disabled due to her learning difficulties. It should be noted that we did find that the claimant’s learning difficulties were a lifelong condition and that this was not doubted. Further we understand that the assessment should be on what the claimant can do, not what she cannot do and that the assessment must be made without the effect of medication. This does not detract from the fact that the evidence we were provided by the claimant and her representative did not address the issue of what effect her learning difficulties had on her ability to carry out day to day activities and therefore we were unable to conclude whether she was disabled at the relevant time.

[14]On balance, having reviewed the lengthy and detailed reconsideration application provided by Dr Coulton I consider that the majority of the matters raised by the claimant in this application have been considered and explored by the tribunal at the hearing, and I do not consider that there is any reasonable prospect of success for the claimant to show that it would be in the interests of justice that the original judgment be varied or revoked.

[15]The claimant’s application for a reconsideration is therefore refused. RECONSIDERATION

Conclusions

[1]The claimant’s Second and Third applications for reconsideration are refused.

[2]The tribunal was convened on 20 March 2019 for what had been listed as a remedy hearing.

The Hearing

[3]By emails dated 9 March and 16 March the claimant made two applications for reconsideration. As the claimant had previously made an unrelated application for reconsideration, these applications area referred to as the Second and Third applications. Both these ‘new’ applications were made on the basis of the discovery of or creation of new, documentation which was not before the tribunal at the full hearing.

[4]The Second application was based on a document that had allegedly appeared in the claimant’s emergency contact details file and was not disclosed to the claimant or the tribunal during the full merits hearing. This document had come into the claimant’s possession in or around September 2018 when the claimant’s representative made a Freedom of Information Act application. The document was a single sided form which, had, in handwriting at the bottom of the page, that the claimant had anxiety and OCD and took citalopram. We were also provided with a covering email between the respondent and ACAS which clarified that this document had been sent by the respondent to ACAS during Early Conciliation.

[5]The Third application was made on 16 March 2019, the date that the claimant’s representative received the new document which is a report by the local council’s ombudsman report. This is an entirely new document and was not available to either party at the time of the full merits hearing in February 2018. The report criticises the way that the local authority and the Local Authority Designated Office (‘LADO’) dealt with the investigation into a child’s disappearance from the respondent and the claimant’s alleged role in that incident.

[6]The Claimant’s representative wanted the matter to be dealt with prior to any decisions about remedy. The respondent felt that the severity of the allegations being made against the respondent’s witnesses was so severe that it was necessary for there to be a hearing and that they had not had sufficient time to prepare for that hearing. Two of the respondent’s witnesses were present.

[7]The tribunal adjourned to consider whether to proceed with the application to reconsider and any subsequent reconsideration today. We decided that it was in the interests of justice and in accordance with the overriding objective for the matter to be dealt with today at a hearing. We agreed that the respondent needed an opportunity to respond to the allegations and that this application for reconsideration could not be decided on the papers. We concluded that a hearing was possible today following an adjournment. Respondent counsel was given sufficient time to take instructions along with the option of providing written witness evidence if they chose. To re-list this matter for another hearing at a later date was, in our view, disproportionate and not in the interests of the overriding objective. This case has been ongoing for some time now and relisting it was not necessary given that the information needed from the witnesses and the respondent was regarding a relatively finite point. Although one respondent witness was not available as she was abroad, the two witnesses who were present were able to address the relevant points.

[8]In order to decide whether to reconsider our Judgment we considered, under Rule 70 whether reconsidering our judgment was in the interests of justice. We considered the overriding objective which states that parties ought to be on an equal footing, that matters are dealt with proportionately and in accordance with the rules of natural justice. We have to balance the interests of both parties. Under Rule 70 we can confirm, vary or revoke our decision.

[9]The leading case where new evidence is produced after the hearing is Ladd v Marshall. The CA held that it is necessary to show:(i) That the evidence could not have been obtained with reasonable diligence for use at the original hearing

(ii) That the evidence is relevant and would probably have had an important influence on the hearing; and

(iii) That the evidence is apparently credible

[10]We found that the evidence for the Second application ought to have been disclosed as part of the original disclosure exercise, was clearly relevant and appeared credible. The evidence for the Third application was not in existence at the time of the original hearing. Whilst the relevance of this document is more debatable, it is clearly credible. We therefore considered that it was in the interests of justice to reconsider our judgment though our final conclusions regarding the applications are set out separately below.

[11]The reconsideration hearing therefore proceeded after a one hour adjournment. The tribunal heard from the respondent witnesses Ms Worsfold and Ms Webb. The claimant did not attend the hearing and did not give evidence. The second application

[12]The respondent’s first argument was that the application for reconsideration was out of time as it was made more than 14 days since the original judgment was sent to the parties and more than 14 days since the claimant had been sent the new document.

[13]The claimant stated that he had not submitted the application earlier because he did not want to make such applications in a piecemeal fashion. He was aware that the Local Authority Ombudsman report was going to be put out soon and he felt it was more appropriate to wait and put the applications in together. The fact that the ombudsman report did not arrive in good time before the remedy hearing meant that Dr Coulton felt he should put in the application without that report.

[14]We accept Dr Coulton’s submissions on this point. Whilst the application is outside the relevant time limit we believe that it is in the interests of justice to allow this application for reconsideration to be heard out of time. The respondent ought to have disclosed this document as part of the disclosure exercise in the original hearing and ought not to be allowed to benefit from its failure in that regard. Dr Coulton is a lay representative, representing his daughter, and the prejudice against his daughter of not being able to pursue this application and have the matter considered by the tribunal would far outweigh the respondent’s difficulty in defending the application. We have considered the need for the ‘finality’ of justice and not allowing parties repeated bites at the cherry, however we believe that this is outweighed on this occasion by the need for this apparently important evidence to be considered.

[15]Arguably, given that the matter is ongoing and remedy has not yet been decided, the respondent or its representatives ought to have considered drawing its omission to the tribunal’s attention at the point at which they realized the document had not been disclosed in accordance with its disclosure obligations. For all these reasons we have agreed to reconsider our judgment in light of this document and the covering email to ACAS. Reconsideration

[16]We have considered whether the document produced and its covering email to ACAS mean that our original decision needs to be either revoked, restated or changed. Rule 70 states that we can do this where it is necessary in the interests of justice to do so.

[17]The claimant’s application states that the respondent’s failure to disclose this document demonstrates that they were untrustworthy and that it undermines their evidence and the tribunal’s conclusions particularly in respect of two findings of fact:

[18]

(i) That Dr Coulton submitted a particular form to the respondent before she commenced employment; and

(ii) That the respondent’s investigation into the disappearance of a child was reasonable and that their decision to refer the claimant to the DBS was not related to her disability or an act of harassment or victimisation.

[19]The claimant’s representative submits that this document was in the claimant’s personnel file, that it was not the emergency contact information as stated by the respondent and that the decision not to disclose it appeared deliberate.

[20]The respondent states that despite its title this document was the claimant’s emergency contact details, that it sat in a separate folder on a shelf in the office that could be accessed by any member of staff should there be an emergency and that the failure to disclose it the first time round was an oversight as opposed to deliberate. The rest of the claimant’s personnel file was kept in a draw that could be locked.

[21]The tribunal felt that the respondent’s explanation was poor. They had sent this document to ACAS and Ms Webb confirmed that she had sent it to them at the request of Ms Godley. She said that she was then in charge of disclosure and did what she was told to do by their legal representatives once the claim was underway - namely send across a copy of the personnel file. She did not think to look in the emergency contacts file as it was normal practice when an employee left for those emergency details to be transferred across to the personnel file. She said that this had not happened in this case.

[22]Whilst we are concerned by the lack of thoroughness applied by the respondent to the disclosure exercise, we note however that the respondent did not deliberately seek to hide the document from ACAS and accept that they thought that it was part of the personnel file that they had sent across and/or were so disorganized that they did not keep a proper track of what had been sent to their lawyers and what had not. We therefore accept that the failure to disclose was a mistake and not a deliberate attempt to mislead the tribunal.

[23]Nevertheless we do find that the failure to refer to it in witness evidence by either Ms Worsfold or Ms Webb does bring their original evidence on the extent of their knowledge about the claimant’s health into significant doubt. Ms Worsfold clearly did, at some point, know that the claimant took medication and we find it hard to believe that she forgot about this despite the extensive questioning and conversation about this in the original hearing. Respondent’s counsel is correct to say that witness evidence is not a memory test and that without reference to this document before the original hearing, Ms Worsfold could have forgotten about it. However given the extent of what she did know about the claimant, and her evidence in her witness statement, which is almost identical in wording to what is on this form save for the information about the claimant’s taking medication; we find it hard to believe that she had forgotten altogether about the extent of the health matters the claimant had told her about.

[24]Further we find that Ms Webb must have read the document when liaising with ACAS as she refers to its content and significance in the covering email to ACAS. At the original hearing she denied knowing about the claimant’s medication as well. Whilst we accept that she may not have known about the ill health at the time, the fact that she failed to tell us that she had since become aware of the extent of the claimant’s conditions feels misleading by omission. If her evidence to us today is to believed then she had disclosed this document to ACAS and expressly referred to it not that long before she wrote her witness statement. However we do note that her original witness statement deals with what she knew at the relevant time whilst the claimant was employed and there is nothing to suggest that she knew about this information during the claimant’s employment and nothing about the evidence given to the tribunal today or from the new documents, contradicts that.

[25]Nonetheless, the claimant’s health and the respondent’s knowledge of it was a matter of key concern to the respondent and it brings their witness evidence on this matter into question. We have therefore reconsidered our conclusions and the extent to which it was based on the evidence that this document refers to and/or the credibility of the respondent’s witnesses.

[26]On reconsideration we find that this document would not have changed our original judgment regarding the claimant’s health. In our original judgment we found that the respondent ought to have known that the claimant was disabled by reason of OCD and anxiety. We based this conclusion on the evidence available to us at the hearing but we believe this document strengthens our conclusions on this point rather than changes them. They ought to have known that the claimant was disabled for the purposes of the Equality Act 2010.

[27]We have then considered whether the doubt over the trustworthiness of these two witnesses’ evidence in this regard should cause us to question our conclusions with regard to the other findings of fact that the claimant’s representative disagrees with.

[28]At the reconsideration hearing the Tribunal asked Dr Coulton which factual conclusions he believed ought to be overturned in light of this document. The first was when or whether Dr Coulton submitted a medical report detailing the claimant’s conditions. The second, which is covered most extensively in his written application, is that the tribunal’s conclusion that the respondent’s investigation was reasonable was perverse and that the referral to DBS was therefore an act of victimisation.

[29]Turning to the first issue of whether or when Dr Coulton submitted the medical report to the respondent. We make the following observations:(i) Regardless of when or whether the report was given to the respondent we concluded that it ought reasonably to have known about the claimant’s OCD and anxiety in any event. This was the main relevance of that document as it went to their knowledge of the claimant’s health. Therefore even if this document casts doubt on the respondent’s trustworthiness about how they kept and stored documents, or their memory of when the documents were delivered - our conclusion would have remained the same.

(ii) The claimant’s evidence about the timing of when documents were provided to the respondent directly contradicted her father’s evidence. This directly informed our conclusion on this point. We concluded throughout that the claimant’s evidence was trustworthy and honest and have no reason to change our mind on this point today.

[30]We therefore conclude that the evidence submitted in the Second Application has no bearing on this particular factual conclusion and we confirm our original Judgment in this respect.

[31]With regard to the second issue of whether the respondent’s investigation was reasonable and whether the respondent’s decision to refer the claimant to DBS occurred because of the claimant’s father’s threat to go to tribunal we note the relevant paragraphs of our factual conclusions in the original Judgment. ‘77. The Tribunal heard a huge amount of evidence from Ms Worsfold about the investigation that she did. Dr Coulton cross examined her for some time on this topic and challenged the reasonableness of the investigation. 78. We are not in a position to, nor is it necessary for the purposes of our findings today, to find out whether the claimant was responsible for the child’s escape. Our only role is to decide whether the respondent’s investigation was reasonable insofar as whether it was reasonable for the respondent to find in their report that the claimant was responsible for the child escaping and therefore whether it was reasonable for the claimant to be reported to the DBS in all the circumstances. 79. Overall we conclude that Ms Worsfold treated the situation with extreme importance and care. The investigation that we were presented with appeared thorough and reasonable. It is correct that there were other possible escape routes for the child as presented by Dr Coulton but they were highly unlikely and CCTV footage clearly showed the escaping child exiting the door behind another family. We accept the respondent witnesses’ evidence that him getting to that outside door could only really have happened in one way. We find that on balance the investigation was reasonable in the circumstances and that given the seriousness of the incident we do not believe that the respondent took steps to undermine the security of its other children by deliberately framing the claimant. 80. We accept Ms Worsfold’s evidence that she was provided with support and guidance during the investigation and subsequently by the LADO officer from the local authority. We accept that she was told by them that she had to refer her report and its conclusions to the DBS for them to satisfy themselves whether there were any wider child protection issues that needed considering regarding the claimant. We do not consider that she would have referred the matter to DBS without being told to do so. The DBS duly found that there was no further case for the claimant to answer and no further action was taken. …..122. We conclude that the reason a factual only reference was provided to Daisy Chain was the fact that the claimant had been referred to DBS as a result of the child escaping. We do not believe that it was as a result of the threat of legal action in the letter dated 24 May.

123. The respondent was faced with a decision as to whether to disclose that they had made the DBS referral which had not yet been concluded, or give no information at all, otherwise they felt that they could have been misleading to the next employer. They chose the latter. Whilst we accept that this may have been in breach of the industry norm in childcare we do not think that it arose in any way because of the claimant’s threat to take possible legal action. The issues surrounding the DBS referral and the concerns raised about the previous reference were more important at that time than the possibility of possible legal action.

124. The DBS referral arose from the very difficult situation of the child escaping. Whilst a huge amount of tribunal time was spent examining photos and maps of the nursery, we conclude that the investigation into the child’s escape was reasonable in all the circumstances. Whilst we accept that the claimant and her father will never accept any responsibility, we have no evidence to suggest that the nursery’s investigation and conclusions were unreasonable and as per our factual findings above we believe that Ms Worsfold’s investigation was reasonable in all the circumstances.

125. We accept Ms Worsfold’s evidence that in those circumstances and in accordance with LADO advice they have to refer to DBS. That DBS referral took place before the ET1 and only when they had a vague threat of legal action from the claimant’s father. We conclude that it was clear from all the evidence given that this was an incredibly emotional and worrying time for all the staff at the nursery given the significant implications of the child’s escape. We do not believe that it was unreasonable for them to make the referral given their conclusions and their conclusions were based on a reasonable investigation. We therefore do not conclude that it occurred as a result of the claimant or her father’s threat of legal action in the letter dated 24 May 2017.

[32]We have therefore reflected on these findings of fact and conclusions in light of the documents attached to the Second application. We have the following observations:(i) We heard and saw extensive evidence about the respondent’s investigation into the child’s disappearance. This was not an unfair dismissal claim where the reasonableness of the investigation was key to the reasonableness of a subsequent decision to dismiss. We had to determine whether any failure to properly investigate was because of the claimant’s threat to go to tribunal. We then had to determine whether the decision to refer the claimant to the DBS was an act of victimisation.

(ii) We did find Ms Worsfold’s investigation reasonable and believed her evidence. However in reaching this conclusion we also relied upon the extensive paper evidence that we were taken to by Dr Coulton in his cross examination and the substance of the report itself, not just the evidence given by Ms Worsfold. We accept that Dr Coulton disagrees with the conclusion reached by Ms Worsfold but we were not considering whether the claimant was responsible for the disappearance of the child. We were considering whether the investigation that was carried out was reasonable in all the circumstances. The body of documentary evidence around the investigation convinced us that this was a reasonable investigation. We did not rely solely on Ms Worsfold’s evidence in this respect.

(iii) Whilst we accept that the new evidence provided under the Second application does bring some of Ms Worsfold’s original evidence into question regarding her knowledge of the claimant’s health we do not accept that this means we have to disregard all her evidence – particularly when it was corroborated by documentary evidence. In this instance her evidence about the extent of the investigation was supported by the extent of the documentary evidence produced that supported the investigation methodology and conclusion.

(iv) We found that the decision to carry out the investigation occurred because of the child’s disappearance not because of the claimant’s threat of litigation. Further we found that the decision to refer the claimant to DBS occurred because the LADO advised the respondent to do so. Dr Coulton has stated in his application that the tribunal found that LADO had said that it ‘must’ refer rather than ‘may’ refer the claimant thus leaving out any element of discretion on the part of the respondent. If Ms Worsfold’s evidence and trustworthiness is now in question because of this document, can we trust what she said about the advice that LADO gave her? We have again turned to our original decision. We found that the decision to refer the claimant to DBS arose because of the advice from LADO. Whether that advice allowed discretion could now be called into doubt but we believe that given the seriousness of the nature of the incident, the respondent would have referred the claimant to DBS because of LADO’s advice even if it was not mandatory advice but merely guidance. Again we conclude that this referral happened because of the child’s disappearance and subsequent LADO advice not because of the claimant’s apparent threat to go to tribunal. The claimant did not establish a link between the apparent threat of legal action and the subsequent events surrounding the disappearance of the child and how the respondent dealt with it. The claimant had already resigned, she was not going to have an ongoing relationship with the respondent and despite the evidence we have heard today we do not accept that our interpretation of the events surrounding the disappearance of the child would have significantly altered had we had more information that the respondent knew or ought reasonably to have known more about the claimant’s health. In our original conclusion we found that the respondent’s evidence regarding their knowledge of the claimant’s health was inadequate hence our conclusion that they ought reasonably to have known about the extent of the claimant’s condition. We had already doubted the respondents’ witnesses’ evidence in that regard when we came to our original conclusions about the investigation and do not feel that this new evidence changes our views regarding the body of evidence upon which we based our conclusions regarding the investigation and the respondent’s subsequent actions.

(v) We therefore confirm our original conclusion that this was an immensely serious incident and that this coupled with LADO’s advice was the cause of the claimant’s referral, not the claimant’s threat to go to tribunal.

(vi) We note Dr Coulton’s submissions about the content of the Ombudsman’s report further undermining our conclusions and address that in full below.

(vii) However we have considered the ombudsman report appended to the Third Application with regard to our conclusion on this matter as well. The report states, at paragraph 69, that Dr Coulton “has provided information showing it was the Nursery’s view that the LADO instructed it to make a referral during the contacts in May and June 2017.” Whilst we do not have sight of what information Dr Coulton was relying upon at this meeting, he appears to have relied upon the nursery’s view about the advice they received when seeking to raise this matter with the ombudsman. We therefore question his decision to rely upon the respondent’s interpretation of the advice from the LADO in one forum and then ask this tribunal to disregard that same interpretation in this forum.

[33]We remain of the view that LADO advised the respondent to refer the claimant to the DBS and this was the reason for her referral not the threat of tribunal proceedings. We reached this conclusion for several reasons and it is not undermined by the new documents produced in the Second application. We therefore confirm our original decision and refuse the claimant’s application for reconsideration as we do think it is necessary in the interests of justice. Third application

[34]The document relied upon by the claimant for the Third application is the Local Authority Ombudsman’s report into the claimant’s referral to the DBS and the local authority’s role in that process. The report concludes that the local authority did not follow proper procedures and that the LADO ought to have taken steps to satisfy itself that the investigation into the child’s disappearance was reasonable and that the claimant ought to have been told about the decision to refer her to DBS and given an opportunity to respond to that decision. This document was only sent to the claimant on 15 March 2019.

[35]We do not believe that this document is sufficiently relevant to the tribunal proceedings to allow a reconsideration. Had this document been submitted in isolation we believe that the tribunal would have been able to deal with this matter on the papers. The document does not comment on the respondent’s actions nor did the respondent give any evidence to the ombudsman before this report was made. The report looks solely at the local authority’s role and is therefore not relevant to the actions of the respondent that the tribunal was considering. It was created a long time after our original decision and the existence of it is sufficiently tangential so as to mean that allowing a reconsideration on this basis would be to allow the claimant a second bite of the cherry over a year after the original hearing. Further it undermines the ‘finality’ of justice which parties need to have faith in when decisions are reached.

[36]If we are wrong on that we have nonetheless considered whether its content ought to change our factual or legal conclusions in the main judgment. We find that it does not. As stated above it refers solely to the behaviour of a third party namely the local authority. It does not examine or comment on the respondent’s behaviour and the respondent was not asked to contribute to the report in any way. If the LADO was wrong to give the advice that he did to the respondent, that does not change the fact that s/he gave that advice and the respondent followed it. It does not change our conclusions as to the reason for the DBS referral namely that this occurred because of LADO advice following the escape of a child - not because the claimant threatened legal action.

[37]Dr Coulton’s submissions in the Third application state that our original conclusion as to the reasonableness of the investigation must be perverse because the claimant was not informed of the allegation and was not able to defend herself. However the investigation we were considering was an investigation into a safeguarding incident. It was not a disciplinary investigation and no disciplinary action was taken against the claimant by the respondent as her employment had already been terminated by reason of a resignation that had been given prior to this incident. The claimant knew why she was being spoken to as part of the investigation – namely that a child had gone missing. The purpose of the investigation went no further than that. Our consideration of its reasonableness went no further than whether it was a reasonable investigation into the disappearance of a child.

[38]Therefore even if the LADO failed to take appropriate steps as per the Ombudsman’s report, that does not detract from our conclusion that the respondent referred the claimant to the DBS on the basis of the LADO’s advice not because of the threat of litigation.

[39]We find that the ombudsman report offers no additional insight or relevance to the other key factual conclusion we reached that the claimant disagrees with namely whether Dr Coulton delivered the medical report or not.

[40]We therefore find that it is not in the interests of justice to reconsider our judgment based on this document. If we are wrong we confirm that our reconsideration has resulted in us confirming our original judgment. Other matters

[41]This matter is now ordered to be listed for a remedy hearing. A separate document will be sent to the parties with that listing. The claimant is reminded that if possible she will need to be in attendance for that hearing in order to give evidence regarding any remedy she is seeking. REMEDY JUDGMENT

[1]Following the Judgment dated 11 July 2018 the claimant is awarded total damages of £39,906.28 under the following heads of damage/adjustments. Loss of Earnings (including 25% ACAS uplift) £10,776.25 Injury to Feelings and Aggravated Damages (including 25% ACAS uplift) £22,500 Interest £6,630.53 Total £39,906.78

[2]The Claimant’s claim for personal injury is not upheld.

[3]At the hearing on 13 February we were provided with an additional bundle of documents and two witness statements; one for the claimant and one for her mother. Both were present and gave evidence though the Mrs Coulton’s evidence was not challenged by the respondent.

[4]The respondent witnesses were in attendance but did not give evidence and it was agreed that they would remain in the respondent’s waiting room due to the anxiety their presence caused the claimant.

[5]As the parties did not finish their submissions until after 4pm on 13 February, the tribunal reconvened in chambers to make its decision. Background and additional factual findings

[6]In our Judgment dated 11 July 2018 we upheld the majority of the claimant’s claims and found that the claimant had been subjected to disability related harassment and a failure to make reasonable adjustments.

[7]We found that as a result of one of the failures to make reasonable adjustments the claimant received a written warning on her record and resigned as a response to that. Subsequently a role that the claimant had thought she had secured was withdrawn because the written warning was referred to in the reference provided to the future employer.

[8]We find that this situation caused the claimant significant loss of earnings. Had that reference been ‘clean’ and the claimant been allowed to simply move on, we believe it is unlikely that this claim would have been brought at all or that the claimant would have suffered any loss.

[9]It was not shown at the original hearing nor as part of the remedy hearing that the respondent could have dismissed the claimant fairly for gross misconduct. Whilst we accept that we found that the investigation was reasonable, it does not necessarily follow that a dismissal would have followed and/or that any such dismissal would have been fair or non-discriminatory. No process had been commenced at the date of termination and the claimant has not been given an opportunity to defend herself against any allegations. We therefore cannot extrapolate from an investigation that dismissal would necessarily have followed nor that the dismissal would have been fair. We conclude that the respondent has not shown that they were more likely than not to have fairly dismissed the claimant after running a fair disciplinary process.

[10]Turning to the claimant’s attempts to mitigate her losses. It is clear that the claimant did try to mitigate her losses. This occurred in two phases.

[11]The first period was immediately after her employment was terminated (March - June 2017). The claimant applied to be on the books for two agencies and separately applied directly for 3 jobs.

[12]The first two have been dealt with in our original judgment but for completeness we set out our findings in relation to them here. The first, to Banana Moon would have been successful were it not for the respondent’s discrimination which led to the claimant having a written warning on her record about her absence levels. The respondent has said that since giving this reference they have removed the written warning from her record and therefore her references.

[13]The second application was made to Daisy Chain. The job offer from them was withdrawn because of the factual only reference provided by the respondent. They provided a factual only reference at the time because they had referred the claimant to the DBS following the escape of a child. We found that the decision to provide this factual only reference was not an act of victimisation as it was caused by the DBS referral as opposed to the claimant’s assertion that she might proceed to a tribunal hearing. We therefore do not award any losses that occurred as a result of this because we have not upheld the claimant’s claim in this regard.

[14]The third direct application was to Rabbit Patch where the claimant was interviewed twice but failed to secure an appointment. No explanation was provided for this but the claimant asserts that the respondent must have given her some form of negative reference.

[15]The two agencies whose books she tried to get onto either refused to continue trying to place her because of the references (Tinies) or said that they could not place her. Again, the claimant believes this is because word must have got round about her reference and leaving the respondent. She believes that the respondent is responsible for the situation and will have given oral references about her.

[16]We conclude that the claimant did make several attempts to apply for both nurseries and nursery agencies immediately after leaving the respondent. We appreciate that it is for the claimant to prove her losses and her attempts at mitigation. Whilst this may not have been a large number of applications we accept the claimant’s evidence that there are only 2 childcare agencies in her immediate vicinity and that she applied for both with no subsequent success at obtaining employment.

[17]We also accept the claimant’s evidence that it was a relatively small community and that once she had applied to these nurseries and agencies, the number of people she could apply to diminished significantly.

[18]Further we do not accept the respondent’s submissions that she would definitely have had a clean reference once the DBS had lifted all concerns. There was evidence at p474 of the original bundle that they were still referring to the claimant as having a written warning on her record. Whilst this mention of her written warning was on the DBS referral itself, we think it is more likely than not that this warning was referred to in any written or oral references provided about the claimant at that time. The mention is under a box asking about whether there have been any previous disciplinary or other issues warranting disciplinary action. Had the respondent indeed removed the written warning from the claimant’s file or record as they said to the claimant after her resignation, we do not believe that it would have been referred to in the DBS referral were that the case.

[19]Respondent’s counsel said that she had been instructed that they have received no reference requests for the claimant since the Daisy Chain reference. We find that hard to believe on the basis that we accept the claimant’s submissions that it is more likely than not that, at the very least, telephone references have been sought because the respondent was put as the claimant’s last employer. Given that the claimant was trying to work in childcare where the safeguarding and industry norms require the last employer to provide a reference it is very likely that references would have been sought about the claimant particularly where she has been interviewed.

[20]As a whole, this situation therefore then gave rise to the claimant concluding that there was little point in continuing to try to find work in childcare in that area as she was very unlikely to find work. We find that this was a legitimate conclusion to reach. This was further reinforced by the claimant’s lack of confidence caused by the discrimination she had suffered. The claimant is an individual with learning difficulties and diagnosed with anxiety and OCD. She was in a position where she felt she had to resign from her role with the respondent because of discriminatory treatment around her sickness absence process and was distressed about this. It is therefore reasonable that her confidence was severely knocked firstly by the discrimination and subsequently by the failure to obtain work in her chosen field of work after 5 attempts. We also find that it was reasonable for her not to look too much further afield because of her various medical diagnoses.

[21]We also find that it is more likely than not that the respondent was being negative about her in oral references subsequent to the dismissal thus contributing to her inability to find work.

[22]The second period of time during which the claimant has suffered losses was from June 2017 until June 2018. For that period of time the claimant found casual work in restaurants and pubs on zero hour contracts. We find that the employment she did secure was reasonable for her to accept given her skills and health. We therefore find that is reasonable that the respondent is responsible for her losses until June 2018. She was mitigating her losses to a large extent.

[23]During this period she also attempted to retrain so that she could find more stable employment which shows further determination to mitigate her losses. She undertook a dog grooming course which we find, in all the circumstances was a reasonable step to take given her previously unsuccessful attempts to find work in childcare.

[24]On concluding that course she decided that she would still prefer to work with children despite her dog grooming qualification. She then attempted to apply for several other childcare jobs in June 2018. None of the applications were successful despite 2 going to interview. As stated above it is not clear what references have been provided by the respondent. However, the fact that in June 2017 the respondent, despite very clear evidence from its witnesses that they had removed it from her record, does refer to the written warning around her sickness absence, we find it likely that any references, whether orally or in writing, from the respondent to date have been in some way negative about the claimant.

[25]At around the same time the claimant did however secure the role that she is in now. This is a role as a playworker in a wraparound childcare school club. We find that it was reasonable for her to accept this job even though it is paid less than her salary was with the respondent. The role involves working with children again, it suits her skills and qualifications and, although it is only part time, it is a way for her to get back into working in the industry she has trained for.

[26]It is also clear from her evidence to us that it is her choice to remain working for this employer because she feels appreciated and respected and supported. We are pleased that is the case. We find however that it is her choice not to move on and find a more lucrative position and therefore it should not be for the respondent to compensate her on an ongoing basis.

[27]We find it reasonable that she would remain in such a role for a short period within her chosen industry to restore her confidence and enable her to be sure that she has a reliable referee before moving on. We therefore consider that it is reasonable to compensate her for the difference between her current earnings and what she would have earned for the respondent for a further period of 6 months, up to the end of 2018.

[28]We find that the respondent’s behaviour did have an impact on the claimant’s health and wellbeing. We have carefully considered the evidence provided by the claimant and her mother as to the impact of the respondent’s discriminatory behaviour. Unfortunately, much of their evidence focuses on the impact of the investigation into the child running away and the subsequent referral to DBS – none of which we found to be discriminatory and therefore cannot factor into our decisions about what award should be made to the claimant.

[29]However we are satisfied that the decision not to allow her to be accompanied at the disciplinary meeting and then the subsequent decision to provide her with a bad reference which resulted in her job offer being withdrawn did have a significant impact on her health as did the disability-related harassment that we found in our original judgment.

[30]We found that although her medication was not increased by the GP, she was referred for counselling. We also considered the aspects that were not challenged by the respondent in her mother’s witness statement including that the claimant lost a lot of weight at this time, her eating disorder returned, her confidence was reduced and she asks questions repeatedly and often struggles to sleep well at night with her mother having to sleep with her for reassurance and comfort. Combined these issues amount to a significant impact on her health and well being.

The law

[31]S124 Equality Act 2010 states that the claimant is entitled to an award of compensation. The claimant should be put, so far as is reasonable in the position as of the discrimination had not occurred rather than simply what is just and equitable.

[32]S119(4) Equality Act 2010 states that the tribunal may include compensation for injured feelings whether or not it includes compensation on any other basis.

[33]The case of Vento v Chief Constable of West Yorkshire Police (No 2)

[2003] IRLR 102

, set guidelines for the amount of compensation to be given for injured feelings and set out three bands of potential awards:(i) The lower band: "appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence".

(ii) The middle band: "serious cases, which do not merit an award in the highest band".

(iii) The top band: "the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race". Only in "the most exceptional case" should an award for injury to feelings exceed the top of this band. The tribunal should focus on the effect the respondent's conduct had on the particular claimant (Base Childrenswear Ltd v Otshudi

UKEAT/0267/18

[34]The Vento guidelines and brackets have since been updated by the Court of Appeal in the cases of Da’Bell v National Society for the Prevention of Cruelty to Children [2010] IRLR and in Pereira de Souza v Vinci Construction UK Ltd

UKEAT/0328/14

. The subsequent Presidential Guidance reflects the updates made by those cases and we have referred to that in reaching our conclusions regarding the level of injury to feelings awarded to the claimant today.

[35]The tribunal has the power to award aggravated damages were a respondent has behaved in a high handed, malicious, insulting or oppressive way” as per Commissioner of Police of the Metropolis v Shaw [UKEAT 01215/11/ZT.] and Broome v Cassell & Co Ltd

[1972] AC 1027

). When considering whether to make an award for aggravated damages the tribunal ought not to focus on the respondent's conduct and motive but on any aggravating effect on the claimant's injury to feelings (Rookes v Barnard

[1964] AC 1129

[36]There must also be a causal link between the aggravating act complained of and the injury or loss suffered by the claimant. The tribunal may order aggravated damages even if the aggravating action is not in itself discriminatory.

[37]In Zaiwalla & Co and another v Walia

UKEAT/451/00

and

UKEAT/827/00

, the EAT held that there was no reason in law why aggravated damages should not be awarded by reference to conduct in the defence of proceedings in a discrimination claim.

[38]This was confirmed in Bungay and another v Saini and others

UKEAT/0331/10

. There, the EAT noted that the nature of the post-dismissal conduct was sufficiently serious as to to attract an award of aggravated damages and that it had been causally connected to the discriminatory behaviour that formed the basis of the tribunal claim.

[39]In Sheriff v Klyne Tugs (Lowestoft) Ltd

[1999] IRLR 481

, the Court of Appeal confirmed that damages for personal injury can be claimed as part of discriminatory compensation.

[40]We have reminded ourselves that Tribunals must be careful when assessing general damages for personal injury to ensure that the claimant is not awarded the same loss twice, with an award for injury to feelings award and a personal injury award.

[41]It is normally the case that a tribunal is provided with a medical report addressing causation of the alleged injury though not essential. Hampshire County Council v Wyatt

UKEAT/0013/16

[42]S207A TULRC(A) 1992 provides that an award of compensation can be increased or reduced by up to 25% where the respondent has failed to comply with the ACAS Code.

[43]Interest in discrimination awards is set down in the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (SI 1996/2803). The tribunal ought to calculate it in accordance with Regulation 2(2).

[44]For injury to feelings awards, interest runs from the date of the discriminatory act to the date of calculation (Regulation 6(1)(a)). For a discriminatory series of acts, interest will generally run from the date of the first act.

[45]For other awards, including past financial losses, the interest runs from the "mid-point" date to the date of calculation (regulation 6(1)(b)). The mid-point is calculated as the date halfway between the discriminatory act and ending on the calculation date.

[46]Interest accrues from day to day, and is simple rather than compound (Reg 3).

[47]The tribunal may refuse to award interest, or may apply a different calculation, if it believes that serious injustice would otherwise result. Conclusions and Calculations

[48]The respondent and the claimant agreed on the claimant’s weekly wage for the respondent and both used the same figures in their calculations.

[49]Given our factual conclusions above as to the claimant’s attempts to mitigate her losses and the fact that we find the losses until December 2018 were caused by the respondent’s discrimination, we award the claimant her entire loss of earnings for the period from the termination of her employment until 31 December 2018. We do not find it is appropriate to compensate her beyond this date as we do not believe that she has demonstrated that any losses beyond this date are attributable to the respondent. We find that she is choosing to remain in a lower paid role because she enjoys her job not because it would be difficult to obtain alternative, higher paid work in her chosen field of childcare.

[50]At the hearing respondent’s counsel agreed with the claimant’s calculations as set out in her Schedule of Loss but did not agree that the respondent had caused them. We have therefore used the claimant’s schedule of loss this amounts to £8,112 for loss of earnings to 31 December 2018.

[51]We also find that it is reasonable to compensate the claimant for the costs she incurred on the dog grooming course which was £509 as we concluded that it was reasonable for her to attempt to explore an alternative career in a situation where she could not find work in her chosen career at that time.

[52]Both parties agreed that the appropriate bracket for the injury to feelings award was the middle Vento bracket. Taking into account the Presidential Guidance and the increased brackets for the relevant period (2017) this bracket was between £8,400 – £25,200. The claimant submitted that she was entitled to £20,000, the respondent submitted that although they accepted the middle bracket was the correct bracket, it should be towards the lower end of the bracket.

[53]We conclude that the impact that the discrimination had on the claimant was considerable as per the evidence she and her mother gave to the tribunal. We have been very careful not to attribute the injury she suffered as a result of the DBS referral or the investigation to the respondent given our findings. Nevertheless, we find that the discrimination we have found did have a significant negative impact on the claimant resulting in her confidence being severely affected, her sleeping and eating being affected and the impact overall being serious. However, she did manage to continue working in alternative fields (which she should be applauded for), and her medication was not increased by her GP as a result of the situation. We therefore award the figure of £16,000 in injury to feelings as we consider that this reflects the level of harm caused by the respondent’s discriminatory behaviour without attributing to them any injury to feelings caused by the DBS referral.

[54]We make a further award of £2,000 as aggravated damages. This award reflects the following two issues which have come to light during the course of this litigation which we find to be capable of high handed and/or insulting as set out in Commissioner of Police of the Metropolis v Shaw [UKEAT 01215/11/ZT.].(i) It appears, from the evidence we have been provided with, that the respondent has not removed the written warning from the claimant’s record and continued to put it on the referral to the DBS despite writing to the claimant and stating that it was being removed from her record. It is not clear, because of this, whether it has been or is still being referred to if references are sought about the claimant. It certainly shows that the respondent has not done what it said it would do which casts significant doubt on what they are doing now and what they have told the tribunal about the references provided (or not) since the claimant’s resignation. Whilst the inclusion of the written warning on the DBS referral occurred before the tribunal had found that the respondent had discriminated against the claimant, it nonetheless occurred after they realised that they had not followed their own internal procedures in giving the claimant a written warning in the first place and had written to the claimant saying that it had been removed. We believe that this demonstrates them being high-handed and shows that they did not take the claimant’s concerns about the written warning seriously and that they failed to correct action which we have subsequently found to be discriminatory and is directly linked to the claimant’s original claim regarding a failure to make reasonable adjustments.

(ii) The failure to disclose the document from the claimant’s personnel file (that was the basis for the claimant’s review application in March 2019) was a significant issue in respect of the very important question around whether the respondent knew about the claimant’s disability. In our Review Judgment we did not find that the failure to disclose the document was deliberate. However we did find that two of the respondent’s witnesses’ evidence to the tribunal about their knowledge regarding the claimant’s health had been at best misleading by omission once we knew about the existence of this document. Their insistence before the tribunal, despite the existence of this document, that they did not know about the claimant’s health was upsetting to the claimant who maintained throughout that she had told Ms Worsfold about her conditions does appear to be high handed of the type that can justify aggravated damages.

[55]We are careful however not to duplicate the claimant’s award for injury to feelings and are aware that this is not a punitive award. We find that this behaviour by the respondent in continuing to assert that they knew nothing about the claimant’s health despite evidence directly to the contrary and continued to refer to a written warning that they knew was incorrectly on her record, have no doubt exacerbated the injury to the claimant’s health particularly given her existing conditions of anxiety and OCD. There is a causal link between these issues and her injury to feelings. Personal Injury

[56]We have not awarded the claimant any damages in respect of a personal injury claim. We conclude that the claimant has not provided evidence that her injury goes beyond that which we have awarded for her injury to feelings award above. We consider that the claimant was obliged to something additional to the injury already compensated for above to warrant a further award for personal injury. However the claimant provided no medical evidence about any such injury. The only evidence provided was by her and her mother and her GP note around the time of her resignation . Whilst this is compelling in respect of the injury to feelings award, personal injury claims do normally require additional evidence and preferably medical evidence to deal with exactly what injury has been suffered and the causation of that injury.

[57]In a complicated situation such as this, where the claimant has existing conditions and medical needs, and has ascribed her deterioration in health to several factors (including ones that we have found to be non-discriminatory behaviour by the respondent), we are not in a position to be able to assess and award separate, additional damages under this separate and additional head of claim. We consider that the award made for injury to feelings and aggravated damages adequately compensates the claimant for the impact that the discrimination had on her as evidenced before us at the remedy hearing.

[58]Even if we are wrong in that conclusion we note that the claimant had not until today, sought to advance a claim for personal injury. At all previous hearings the claimant had not mentioned or evidenced personal injury as an additional head of claim. Therefore to bring such a claim the claimant is in effect applying to amend her claim at this late stage.

[59]No application to amend was sought by the claimant’s representative. We have born in mind that the claimant is represented by her father, a lay representative, and he explained that they had included this head of damage after receiving expert advice from a barrister on their schedule of loss. We have therefore treated the late inclusion of this head of damage as an application to amend.

[60]However the amendment was not applied for until the hearing today over 2.5 years after the claim was first presented and a year after the first remedy hearing was listed (it subsequently became a review hearing). In considering an application to amend we must consider whether it is in the interests of justice to allow it and weigh the relevant prejudices to the parties. We believe that to allow such an amendment at this late stage is prejudicial to the respondent who was not in a position to be able to defend this claim at this late stage beyond addressing the Dr Coulton’s submissions as they were given. They were not, for example, in a position to request or provide any medical evidence to counter any evidence provided by the claimant and her mother in respect of any injuries suffered.

[61]In the event, as per our conclusions in paragraphs 46 and 47 above, insufficient evidence was provided in any event to allow us to make such a determination. However that does not change the fact that the respondent was not in a position to properly defend any such claim because of the lateness of its inclusion by the claimant. For those reasons we refuse what we have deemed to be an application to amend the claimant’s claim to include a claim for personal injury. ACAS Uplift

[62]We found that the respondent failed to follow the ACAS process in respect of two meetings which ultimately led to the claimant resigning. This failure occurred despite the respondent having in place procedures which did comply with the ACAS process that they chose not to follow. The failure was complete in that the claimant was not written to to be invited to the meeting, she was not told of the purpose of the meeting, she was not entitled to be accompanied at the meeting and she was not given the right to appeal. She did appeal and they repeated the same pattern for the appeal hearing. We therefore consider that the uplift should be the maximum of 25%.

[63]We have uplifted both parts of the award separately because the interest awarded on these figures must be dealt with separately. The uplift to the injury to feelings and aggravated damages = £18000 +25% = £22,500. The uplift to the loss of earnings = £8,621 + 25% = £10,776.25. Interest

[64]The earliest date of discrimination that we found to have occurred is 16 March 2017. This was the date of the first meeting with the claimant on her return from a period of sickness absence where a written warning was given to her. We calculate interest at 8% on the amount of injury to feelings and aggravated damages that we apply the 8% from 16 March 2017 which is when the first incident of discrimination that we upheld occurred.

[65]We have considered whether interest ought to be awarded in respect of a shorter period of time than that set out in Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. The period of time for which interest is awarded can be changed if the normal approach would cause serious injustice. We do not consider that this threshold is satisfied here. We have considered the fact that this matter has been ongoing for a considerable period of time. The delays in the case have often not been of either parties’ making and to a large extent due to administrative issues. Delay has been caused by the claimant exercising her right of appeal against the various decisions reached by the tribunal but we do not consider that this represents serious injustice to the respondent or that this is an exceptional situation. We reach this conclusion not least because the review that occurred in 2019 was in part caused by their failure to disclose a document at the relevant time. We have therefore not reduced the period for which interest is to be awarded.

[66]The number of days from the discrimination to today’s date is 1085 or 2.97 years. 2.97 x .8% x £22,500 = £5,346

[67]The interest on the loss of earnings is calculated from the midpoint between the date of discrimination and the date this judgment was decided. That midpoint is 7 September 2018. 543 days or 1.49 years. 1.49 x 8% x 10,776.25 = £1,284.53

[68]Total Award Loss of Earnings £10,776.25 Injury to Feelings £22,500 Interest £6,630.53 Total £39,906.78