Miss C Baldwin v Cleves School and others: 2302619/2015

EMPLOYMENT TRIBUNALS

Case No 2302619/2015

Between

Miss C BaldwinClaimant

Cleves School and othersRespondent

Before

Employment Judge Webster

Not represented for claimant

Mr Cox (instructed by Counsel) for respondent

Date 2 January 2021

JUDGMENT

[1]The Judgement of the Tribunal is that the Tribunal does not grant the respondents’ application for the claims to be struck out.

[2]The Tribunal upholds the respondents’ application for an Unless Order under Rule 38.

REASONS

[3]Today’s hearing was listed by a Notice of Hearing dated 30 October 2017 as a preliminary hearing to consider the following matters:3.1 If not already conceded whether the Claimant was at the relevant time a disabled person as defined in Section 6 of the Equality Act 2010

3.2 If so whether the Tribunal has jurisdiction to consider the Claimant’s complaint given the relevant time limit in Section 23 of that Act. The Notice of Hearing also set out that case management orders may be made at the conclusion of the hearing.

[4]The claimant did not attend today’s hearing. By email to the Tribunal dated 14 November the claimant stated that she was well enough to attend the hearing but that due to possible repossession of her home she had to prioritise attending an appointment with a legal aid lawyer scheduled for 10 am today and asking that the hearing was postponed. Following representations by the respondent and consideration by the tribunal, that application for postponement was refused.

[5]The hearing was attended by the Respondent’s representative and an observer from the Respondent. In the absence of any material or evidence on which to consider the matters set out in the Notice of Hearing, the tribunal was unable to consider the questions set out in the Notice of Hearing.

[6]The respondent made an application for the case to be struck out. There were 4 bases for that application:(i) Rule 47 Employment Tribunals Rules of Procedure 2013 (the ‘Rules) – Failure to attend the hearing

(ii) Rule 37(c) – For non-compliance with an order of the Tribunal

(iii) Rule 37(d) – that the claim had not been actively pursued

(iv) Rule 37(e) - that it is no longer possible to have a fair hearing in respect of the claim because of the significant time that has elapsed since the events in question occurred.

[7]In the alternative, the respondent made an application for an Unless Order to be made under Rule 38. Unless Orders state that if a Tribunal order made under this Rule is not complied with then the claim (or part of it) shall be dismissed without further order. This means that if the Orders are not complied with then the Tribunal shall strike out the claim without any further hearing or consideration of the issues.

[8]In considering the applications I considered the time line of the tribunal claim (not the incidents which form the basis for the claims). I set it out here so that the parties and future tribunals can easily refer to what has or has not happened to date. 9.(i) 18 August 2015 - the Claim was issued against 5 Respondents.

(ii) 21 September - the Claim was listed for a general case management hearing on 16 November 2015.

(iii) 2 November 2015 - Two separate ET3s were received (one for respondents 1-3 and one for respondents 4-5) following an agreed extension of time to submit them.

(iv) 2 November the respondents apply for the case against respondents 4 and 5 to be struck out.

(v) 11 November – the claimant applies for a postponement of the hearing listed for 14 November because she is too unwell to attend.

(vi) 12 November the claimant’s application is approved and the claimant is asked to provide a medical certificate confirming that she is too unwell.

(vii) Medical confirmation was received in the form of a letter from her GP dated 17 November 2015.

(viii) On 3 December 2015 the tribunal wrote to the claimant asking her to confirm when she would be well enough to attend a hearing. She was asked to respond by 10 December 2015.

(ix) 4 December 2015 - The claimant responded stating that she was awaiting an urgent consultant’s appointment and would respond when she knew more.

(x) 19 January 2016 – the tribunal wrote to the claimant asking her to indicate when she would be well enough to attend the hearing.

(xi) 22 January 2016 – the respondent applied for the claim to be struck out or to seek confirmation from an expert as to when the claimant would be well enough to attend a hearing. (xii)29 January the claimant stated that she had asked her GP for a letter and that she had evidence from a consultant. The letter from the consultant was not forwarded. (xiii) 15 February 2016 – the tribunal refused the application for strike out but ordered the claimant to provide a medical report as to whether the claimant was fit to attend a hearing on or before 26 February 2016. (xiv) (xv)18 February a letter was sent from the claimant’s GP to confirm that the claimant had been unwell and so could not attend court. It does not set out the basis for that ill health. (xvi) 29 February the claimant said that she had forwarded the letter from the consultant but it was not attached. (xvii) 17 March – the claimant is written to by the tribunal saying that she must provide the consultant’s letter she refers to by 28 March 2016. (xviii) 28 March copies of personal medical information including letters from consultants were sent to the Tribunal. (xix) 27 April – EJ Baron writes to the parties and orders that an open PH be listed. (xx) 13 May 2016 – a Notice of Hearing is sent to the parties setting out that it will consider:  To clarify the claims  To decide whether the Tribunal has jurisdiction to hear the various claims  To decide how to determine whether the claimant was a disabled person  To make any other appropriate case management orders (xxi) 28 July – the PH went ahead. The claims were struck out against respondents 4 and 5. Various case management orders were made which are recorded in the Judgment and orders from that day. A further preliminary hearing was listed for 19 September 2016. To date, none of the orders requiring the claimant to provide information have been complied with. A further PH was listed for 14 September to determine (xxii) 12 September 2016 - the claimant applies for a postponement of the hearing on grounds of ill health. (xxiii) 16 September – the PH was postponed and the claimant was asked to provide a letter from her GP confirming her ill health. That letter has not been received by the tribunal to date. (xxiv) 3 October 2016 – a Notice of Hearing was sent listing the same PH for 8 December 2016. (xxv) 11 November 2016 – the claimant wrote to the tribunal seeking an application for a postponement of the hearing on 8 December due to confidential ill health matters. (xxvi) 18 November 2016 – the Tribunal confirms postponement of the hearing. (xxvii) 22 November 2016 – a Notice of preliminary Hearing is issued for a hearing on 19 January 2017. The issues to be determined remain the same. (xxviii) 11 January 2017 – the claimant applies for the hearing to be heard by way of a telephone hearing on medical grounds. (xxix) 18 January 2017 – that application is refused. (xxx) 18 January 2017 – the claimant provides medical evidence regarding her ill health at that time. (xxxi) 18 January 2017 – the hearing is postponed and the claimant ordered to provide evidence of when she will be fit to attend a hearing. (xxxii) 14 March 2017 – claimant provides a narrative medical update. (xxxiii) 21 March 2017 – the tribunal writes to the claimant stating that it requires a letter from a medical practitioner. (xxxiv) 25 April – the tribunal chased a response to that request and required a response by 2 May 2017 (xxxv) 24 May 2017 – the tribunal wrote stating that it was considered striking out the claim due to the claim not being actively pursued and requiring a response. (xxxvi) 26 May – the claimant responds enclosing some medical evidence and informing the tribunal that she is due to have surgery. (xxxvii) 15 June – the tribunal write extending the time for response by 1 month until 15 July 2017. (xxxviii) 15 June – the claimant responds but does not provide medical evidence. (xxxix) 28 June – the claimant forwards medical evidence including confirmation of surgery. (xl) 13 July – the respondent’s application for strike out is refused but further medical evidence is required by 17 September 2017 otherwise a preliminary hearing will be listed to consider strike out. (xli)20 August the claimant writes confirming her availability to attend a hearing. (xlii) 30 October – the matter is listed for today’s hearing.

[10]It is clear that this claim has been beset by delays and there has only been one preliminary hearing to date. The claims have not been clarified, there is no medical evidence regarding the relevant period (when the claimant was an employee) and no information regarding what acts the claimant relies upon as being acts of discrimination. These are significant issues which need to be progressed to enable this case to be decided.

[11]Whilst I have carefully considered the respondent’s application for the claims to be struck out, particularly in light of the claimant’s failure to attend today’s hearing and the fact that she has not yet complied at all with the orders made by Judge Spencer in July 2016, I think that to strike out the claim today would be disproportionate and is not in the interests of the Overriding Objective (Rule 2).

[12]Rule 54 states that parties should be given reasonable notice when a strike out application is to be considered at a preliminary hearing. It is clear that prior to today’s hearing the claimant had not been given notice of the possibility that her claim was at risk of being struck out.

[13]Whilst Mr Cox argued that the possible strike out had been trailed by EJ Spencer’s letter to the claimant stating that she would consider striking out the matter, the Notice of Hearing for today’s hearing makes no mention of that possibility. The claimant wrote to the tribunal by email after the postponement was refused and addressed the issues set out in the Notice of Hearing, again confirming that she was unaware that strike out of her claim might be considered today. I therefore conclude that it is not in the interests of justice, particularly with a litigant in person, that the tribunal strikes out the case as she has not been given an opportunity to respond to their application.

[14]However I am mindful of the fact that this matter has now not progressed in any meaningful way for over 2 years. Mr Cox highlighted that memories of events fade over such time, that the respondents continue to incur expenses in fighting this claim, and that it is possible that we are reaching the point where a fair trial is no longer possible. Further I have considered the fact that the claimant is pursuing her claim against 2 individuals as well as her employer and the impact of having this matter hanging over them for so long needs should be considered.

[15]The claimant has not complied with the orders set out by EJ Spencer following the last preliminary hearing in 2016 at all. No evidence or explanation for that failure has been provided by the claimant to date. Her correspondence with the tribunal and the respondents has, to the best of my knowledge, dealt with why she cannot attend hearings but does not address why she has not been able to respond to those orders as set out in July 2016.

[16]Therefore, in order to ensure that the claims are appropriately progressed and in light of all the matters raised above and the considerable delay that has been experienced to date I consider that it is proportionate for me to use my discretion and make Unless Orders under Rule 38 as set out above. The orders given are simply those already issued in July 2016 by EJ Spencer and need to be complied with in order for this case to progress. The Claimant has had since July 2016 to action them and whilst I am mindful of the considerable health issues she has suffered she has now said that she is well enough to attend a hearing and progress her case. I therefore consider that it is in the interests of the Overriding Objective that the claimant is now required to comply with the orders also made today for her claims to continue.

Background

[1]The Claimant was employed as a teacher at the First Respondent school (“R1”) from 1 September 2014 to 20 March 2015, when she resigned. The Second Respondent (“R2”) was the head teacher of the school at the material time and the Third Respondent (“R3”) was a teacher at the school, assigned as the Claimant’s mentor. The Claim Form relies upon claims of disability discrimination only.

[2]This case was listed for a Preliminary Hearing before EJ Webster on 21 November 2017, to consider:(i) if the Claimant was a disabled person within the meaning of section 6, Equality Act 2010 (“EA 2010”); and

(ii) if the Tribunal had jurisdiction to consider the claim, given the time limit imposed by section 123 EA 2010. The Claimant did not attend the hearing, in the circumstances referred to by EJ Webster at paragraphs 6 – 7 of her Reasons. Given the lack of progress with the proceedings since the Claim Form was presented on 18 August 2015, the Respondents submitted the case should be struck out. A helpful summary of the proceedings to date was set out at paragraph 9 of EJ Webster’s reasons. She declined to strike the case out, but she made an “Unless Order”, providing the claims would stand dismissed without further order, unless by 12 December 2017, the Claimant undertook the following: “2.1 The Claimant is ordered to produce a clear impact statement which sets out the effect that her conditions had on her at the time of her employment and on the date she resigned / was dismissed. This involves setting out: (a) The precise nature of her impairment or impairments (b) The extent of the effects she alleges her impairments had at the relevant time (principally during her employment at the First Respondent) on her ability to carry out normal day to day activities (c) The period or periods over which those effects have lasted and any prognosis for recovery (d) Whether or not she has been treated for the impairment(s) and what difference, if any, such treatment has had on the effects of the impairments (Note: this should not set out the current impact of any health conditions, but focus on the impact that any health conditions had at the time the claimant states she was discriminated against) “2.2 The Claimant is ordered to obtain a report or reports covering the matters set out in paragraph 17.1 above from her GP or any qualified medical consultant and send a copy of such report to both the Respondent and the Tribunal. “2.3 The Claimant is ordered to produce a clear list of incidents or acts which she relies upon as being incidents of disability discrimination. The Tribunal suggest that the following table is an appropriate format….” [The order then set out a table with four column headings “Date of incident”; “What happened”; “Who carried out the act”; and “If possible please state what type (or types) of disability discrimination you say this is (direct, discrimination arising from disability, harassment, victimisation, failure to make reasonable adjustments)”]

[3]EJ Webster also listed a further preliminary hearing for 24 January 2018 to consider the following issues: “(a) Whether the Claimant was at the relevant time a disabled person as defined in section 6 of the Equality Act 2010. (b) If so, whether the Tribunal has jurisdiction to consider the Claimant’s complaint given the relevant time limit in section 123 of that Act. (c) Whether all or part of the claim ought to be struck out because:(i) The claim has not been actively pursued and/or

(ii) There has been a failure to comply with Tribunal Orders

(iii) It is no longer possible to have a fair hearing”

[4]On 12 December 2017, the Claimant emailed the Tribunal and the Respondents, attaching a 17-page schedule of incidents, set out under the four column headings that EJ Webster had proposed (“the Schedule of Discrimination Incidents”); a three page “Disability Impact Statement” and some medical records, in particular a letter from Dr Frankel, Consultant Physician and Nephrologist, listing the conditions the Claimant had been diagnosed with, the date of the diagnosis and her current medication.

[5]The conditions which the Claimant described in her Disability Impact Statement were: Guillain-Barré disorder, diagnosed in 2006; Chronic Pain and Chronic Fatigue Syndrome since 2006; Hyperhidrosis since 2010; Pinealoma since 2006; Nutcracker Syndrome since 2011; depression and anxiety since 2006 and irritable bowel syndrome. Her statement said that she was affected by all of these during the alleged discrimination in 2014 – 2015 and she described her various symptoms and the medication she was taking. She also explained that during the material period she was being tested for the possibility of MS. The Issues for the Hearing on 24 January 2018

[6]Both Claimant and Respondents attended the hearing. At the outset, Mr Cole indicated that in light of the Disability Impact Statement and related material received, the Respondents now accepted that the Claimant was a disabled person at the time of the alleged discrimination (albeit knowledge of disability would be in issue). He also indicated that the Respondents no longer sought to strike out the claim on the full range of grounds that had been raised with EJ Webster (as reflected in her order regarding this Preliminary Hearing). However, strike out on certain grounds was pursued.

[7]I then clarified with the parties that the following were the live issues for me to decide at this stage:(1) Whether the Claimant had complied with the Unless Order. If not, whether it was in the interests of justice for me to set aside the striking out of the proceedings that would follow from that conclusion?

(2) If the claim was not struck out under (1), whether it was appropriate to determine time limits issues at this stage, rather than at a full merits hearing. If it was, whether the proceedings had been brought within the primary time limit set out in section 123 EA 2010. If not, whether it was just and equitable to extend the time for doing so?

(3) In so far as the claim survived (1) and (2), whether all or part of the claim should be struck out on the basis that it was not adequately particularised and/or it was no longer possible to have a fair trial of two of the allegations?

(4) If and in so far as the case was not struck out, the issuing of appropriate case management directions (which are dealt with in a separate Order).

[8]At the hearing I considered each of these matters in turn, hearing submissions and then giving my ruling orally with summary reasons. The reasons set out in this document reflect those that I gave orally. Issue 1: Compliance with the Unless Order

[9]After receipt of the information provided by the Claimant on 12 December 2017, no steps were taken by the Tribunal to strike out the claim pursuant to rule 38(1) of the Employment Tribunals Rules of Procedure. It was apparent from the file that no specific consideration had yet been given to whether the terms of the Unless Order had been met. As the claim had not been struck out, the Claimant had not made an application pursuant to rule 38(2) to have such an order set aside (on the basis that it was in the interests of justice to do so). The parties sensibly agreed that I should consider both these questions at the hearing, without the need for written application to be made.

[10]The Respondents accepted that the Claimant had complied with paragraph1.1 of the Unless Order by the Disability Impact Statement she provided. However, they submitted that she had failed to comply with paragraphs

1.2 and 1.3. The relevant principles

[11]Mr Cole provided me with an extract from Division P1 of Harvey on Industrial Relations and Employment Law, paragraphs 390 – 396 setting out the applicable principles. In particular, I noted that for an unless order to be effective in attracting the sanction of automatic dismissal, it must identify with clarity what is required for compliance: paragraph 396, citing Mace v Ponders End International Ltd

[2014] IRLR 697

. Further, that the sanction embodied in an unless order takes effect without the ned for any further order if the party to whom it is addressed fails to comply with it in any material respect: Johnson v Oldham MBC

UKEAT/0095/13

(paragraph 395, Harvey).

[12]As regards granting relief from the sanction of strike out that would otherwise follow a breach, in Thind v Salvesen Logistics Ltd [2010] All ER (D) Underhill J stated that the exercise involved a broad assessment of what is in the interests of justice and whilst the factors material to that assessment will vary considerably, they will generally include: the reason for the default; whether it is deliberate; the seriousness of the default; the prejudice to the other party; and whether a fair trial remains possible. In Morgan Motor Co Ltd v Morgan

UKEAT/0128/15

, HHJ Eady emphasised the significance of the policy objective behind unless orders and the general importance the courts will attach to compliance with them (paragraphs 394 – 394.02, Harvey). Compliance with paragraph 2.2 of the Order

[13]The letter from Dr Frankel set out the nature of the Claimant’s impairments and the date when they were diagnosed. However, the letter did not address sub-paragraphs2.1 (b), (d) or part of (c). Paragraph

2.2 of the Unless Order contained an error in purporting to cross-refer to paragraph 17.1 of the Order, rather than paragraph 2.1, when indicating what the report should cover. On the same day that she received the Unless Order (23 November 2017), the Claimant emailed the Tribunal seeking clarification of what was meant by the reference to paragraph 17.1 in it. Because of a delay in the matter being referred to EJ Webster, the Tribunal did not reply to the Claimant’s query until 3 January 2018, several weeks after the time for compliance with the Unless Order.

[14]It appears from what the Claimant told me, that she must have understood that it was at least a distinct possibility that the reference to paragraph 17.1 in the Unless Order was intended to read paragraph 2.1, as she described discussing with her GP how feasible it would be to obtain the information within the prescribed time period. Nonetheless I accepted she was genuinely unsure, hence her prompt email to the Tribunal, seeking clarification.

[15]Given the lack of clarity in paragraph 2.2 of the Unless Order, the delay in providing the clarification sought by the Claimant and the importance of orders with draconian consequences being expressed in clear terms, I did not find that the medical evidence provided by the Claimant constituted a breach of paragraph 2.2 of that order.

[16]As I also indicated at the hearing, in the alternative, if I were incorrect in that conclusion, this appeared to me to be a strong case for finding that it would be in the interests of justice to grant relief from sanctions. I was, of course, conscious of the concerning history of these proceedings and the lack of progress made before 12 December 2017. Even making due allowance for the fact the Claimant indicated to me that she disputed certain aspects of EJ Webster’s summary of the history and she stressed her health issues, it was clear there has been a marked lack of progress over a substantial period of time. I bore that in mind, along with the importance of Tribunal orders being adhered to. However, set against that, I regarded the following features as significant:• The Claimant fully complied with paragraph

2.1 of the Order, as the Respondent accepted and gave at least partial compliance with paragraph 2.2;

• The combined effect of those steps by the Claimant was to enable the Respondents to assess and accept that she was a disabled person for the relevant time – the very purpose for which those orders were made;

• It followed too, that there has been no prejudice to the Respondents from any failure to comply with paragraph 2.2;

• The ambiguity in the wording of paragraph

2.2 and the potential for confusion this caused, even if not sufficient to warrant a finding of no non-compliance, was a relevant factor to weigh in the balance (as the Respondents accepted);

• Whilst the Claimant did not seek to appeal or vary the Unless Order (and it was, in turn, based on the terms of an earlier order made following a Preliminary Hearing on 28 July 2016), I noted that the time for compliance prescribed by the Unless Order was short, given the number of medical conditions the Claimant suffered from at the relevant time and the number of medical practitioners she explained she would have had to approach to obtain the details set out in subparagraphs (b) – (d) in relation to each of her conditions. To do this would have been a substantial undertaking. Furthermore, it seemed to me that a claimant should be permitted to decide whether to deploy medical evidence in support of their claim (taking the risk that if they do not do so, they may not sufficiently evidence they are a disabled person), rather than being ordered to supply specified medical evidence in support of it, on pain of strike out if they fail to do so. Compliance with paragraph

2.3 of the Order

[17]I then considered whether the Schedule of Discrimination Incidents provided by the Claimant complied with paragraph 3.3 of the Unless Order. I was asked to address the extent to which individual allegations were properly particularised when dealing with the third issue (below). At this stage, Mr Cole put his submission on a global basis, namely that taken overall the document provided by the Claimant did not meet the requirements of the Unless Order. The Schedule sets out a number of allegations over 17 pages, each addressed in the four columns mentioned earlier. Whilst it is true that the entries in the second column “What happened” are sometimes quite verbose, when a more concise description would have been more helpful; I observed that it was not altogether surprising that the event was set out in full, rather that the act of discrimination being isolated, given the column heading the Claimant was addressing. I also noted that in relation to each incident, the Claimant has indicated the cause of action relied upon and completed the other proposed columns. It appeared to me that she had put a significant amount of thought into this document and I also bore in mind when judging compliance that she is a litigant in person.

[18]In essence the Respondents’ complaint was that the list was not a “clear” one (to use the phraseology of the Order), or at least not a sufficiently clear one, given the rather long descriptions provided. The achievement / nonachievement of clarity is a somewhat subjective concept. It seemed to me that whilst the list could have been clearer, there has been material compliance with the terms of the order. Further, that the extent and presentation of the information provided was such that remaining uncertainty appeared to be capable of resolution.

[19]Again, I indicated that if I were wrong in that conclusion, the same features would have caused me to grant relief from sanctions, applying the interests of justice test. Issue 2: Time limits The primary time limit

[20]The relevant dates were as follows: 14 February 2015: Last incident of alleged discrimination on Claimant’s Schedule 20 March 2015: Claimant resigned her post with R1 19 June 2015: The “A date” in relation to R2 and R3 26 June 2015: The “A date” in relation to R1 19 July 2015: The “B date” in relation to R2 and R3 26 July 2015: The “B date” in relation to R1 18 August 2015: When Claim Form presented

[21]The primary time limit for presentation of the disability discrimination claim was three months less one day from the discrimination complained of (or the last discrimination complained of, in so far as it was an act extending over a period): section 123, EA 2010. The Respondent submitted that this date expired before the time when the Claimant made contact with ACAS as required by section 18A Employment Tribunals Act 1996 (“the A date”). This is because if time ran from the last act of alleged discrimination, the three months less one-day period expired on 13 May 2015. In a situation where time has already expired before the A date, the Claimant cannot take advantage of the extensions provided by section 140B(3) and (4), EA 2010, which would suspend time from running between the A date and the date when the certificate is issued by ACAS (“the B date”) and provide an additional month after the B date for presentation of the claim.

[22]The Claimant did not dispute that analysis and I accepted the Respondents’ submission that the claim was presented outside of the primary time limit. Whether just and equitable to extend time

[23]However, the Claimant submitted that it was just and equitable for me to extend the time for the presentation of her claim, pursuant to section 123(1)(b), EA 2010. In relation to this issue, I first considered whether now was the appropriate time to make this determination. The Respondent submitted that it was, accepting I would not be able to make any evaluation of the merits, one way or the other, at this preliminary stage. Given that the question I had to determine was not dependent upon findings of fact that could only be made at the full merits hearing (as is usually the case where there is an issue over whether there was an act extending over a period) and given I was able to assess the particular factors that the parties urged upon me, I decided I could and should determine the point at this juncture.

[24]The Claimant explained why she did not issue proceedings earlier. She was told by a lawyer who she obtained some advice from under the legal aid scheme and by the ACAS employee she dealt with, that time would run from the date she left her employment. Accordingly, she believed she could take advantage of the extension of time provided in relation to early conciliation and believed she had a month from the first of the B dates and thus submitted her Claim Form on 18 August 2015, just before the end of this period. She did not submit it earlier as she was still formulating her claim and also was affected by health issues at the time. However, had she appreciated that time expired earlier, she would have ensured she presented her Claim Form in accordance with that. Further, when she filled in the initial form with ACAS, she thought she had given sufficient information to include R1, as well as R2 and R3. However, she was texted by ACAS on 22 June 2016 asking her to get in touch; she did so and they pointed out that she needed to fill in another form in relation to R1. She did this promptly, submitting it on 26 June 2015. The Respondents raised no free-standing issue in relation to this latter point.

[25]As regards her main explanation, whilst pointing out that we did not have the full context in which this advice was given, Mr Cole did not dispute that the Claimant was given this advice, nor that she relied upon it (and he did not seek to cross examine her on these points). That she did receive and rely upon the advice she described, is consistent with the date upon which the Claim Form was presented, as I indicated above. Furthermore, although the Claimant had not included the loss of her employment as an act of discrimination (as opposed to a consequence of it), it is not uncommon for a claim to be formulated in a way that time would run from the effective date of termination in such circumstances, so it is credible that such advice was given out of a mistaken assumption in this instance.

[26]I was not provided with any of the case-law relating to the exercise of the just and equitable discretion, but when I raised the point, Mr Cole suggested we referred to the summary of the principles and related cases in Harvey. This is to be found in Division P1 at paragraphs 277 – 279.08, which I then had the opportunity to consider. I noted the following in particular: it is a broad discretion, but there is an onus on the Claimant to establish that it is just and equitable to extend time. The factors relevant to the exercise of the discretion were discussed in British Coal Corp. v Keeble

[1997] IRLR 336

; see also paragraph 279 of Harvey. In particular, it appeared to me that I should consider the Claimant’s explanation for the delay; and weigh the relative prejudice to the parties.

[27]As regards the receipt of inaccurate legal advice, which the claimant then relies upon in presenting a claim out of time, the general thrust of the authorities appeared to me to be that whilst the claimant’s own fault is relevant; if the fault lies with those who advised the claimant, then it is unfair to lay that failing at the claimant’s door: see Virdi v Commissioner of the Metropolitan Police

[2007] IRLR 24

EAT; Benjamin-Cole v Great Ormond Street Hospital for Sick Children NHS Trust [2010] All ER (D); and Robinson v Bowskill (2014) ICR D7. In this regard, it seemed to me that there was no distinction of principle between advice given by a solicitor and advice given by another person who the claimant reasonably relied upon in the circumstances; in both instances fairness suggests that the error is not the fault of the claimant.

[28]Mr Cole placed particular emphasis on Thompson v Ministry of Justice

UKEAT/0004/15

(which is also referred to in the Harvey text), submitting that the case showed there must be negligence on the part of the advisor, rather than simply some failing, for the principle to apply. I therefore read the case over the lunchtime break. Having done so, as I indicated, I did not agree with this interpretation of the EAT’s decision in Thompson (dismissing an appeal against an Employment Judge’s finding that it was not just and equitable to extend time in the circumstances). The determining features appeared to me to have been that the claimant was told that ‘on balance’ there was no need for him to bring an action yet and that he was ‘taking a risk’ by not doing so; so that in the circumstances he knew the position was doubtful and understood he was taking a chance in not issuing sooner: see paragraphs 44 and 48. In other words, the crux was that there was some fault on the part of the claimant himself; this was the crucial point, rather than the claimant’s inability to show negligence in the legal sense. Furthermore, such a rigid approach of requiring negligence as such to be proven, would be inconsistent with the broad and flexible nature of the just and equitable discretion; and it would be odd if the question of whether the claimant was to be held responsible for the errors of others for the purposes of this discretion, turned upon questions such as whether the person giving the advice owed a legal duty of care to the claimant or not.

[29]Mr Cole did not identify analogous failings to those in Thompson on the part of the Claimant. Accordingly, I found that the Claimant had provided a satisfactory explanation for why she did not issue proceedings earlier and I accepted that she would have issued them in time, had she been told the correct date for doing so.

[30]However, that conclusion, though relevant to the experience of my discretion, was not in itself determinative; I still had to consider the respective prejudice the parties would suffer. Plainly the Claimant would suffer considerable prejudice if I did not exercise the discretion in her favour, as she would be unable to litigate the entirety of her claim. On the other hand, if I did extend time, the Respondent would lose the benefit of the limitation point. However, this was not a case, as Mr Cole fairly accepted, where it was said that there had been any forensic prejudice caused to the Respondents as a result of the three months delay between the last date for bringing proceedings in time and the actual date of issue.

[31]I bone in mind the subsequent delay in the conduct of the proceedings. However, I accorded less weight to this factor, given that I was to separately assess if that delay has impacted upon whether a fair trial could still take place and I was currently focused particularly upon the effects of the three-month period I referred to in the previous paragraph, rather than later events.

[32]I acknowledged that there were factors pointing both ways and I weighed them carefully. On balance I considered that the Claimant has shown that it was just and equitable for me to extend time for the presentation of her claim to cover the date when it was lodged with the Tribunal. Accordingly, the Tribunal had jurisdiction to hear this claim. Issue 3: Other Grounds for Striking Out the Claim

[33]The submission that a fair trial was no longer possible in relation to two allegations, was based of witness unavailability, as set out in the statement made by R2 for these purposes. During submissions, Mr Cole indicated that the point raised at paragraph 6 of the statement was no longer pursued.

[34]This simply left the suggestion that a fair trial of the allegation involving Karen Cummings was no longer possible because she was not now employed by R1. However, upon inquiry, it emerged that the Respondents had yet to take steps to see whether Ms Cummings could be traced or not. In the circumstances I indicated that I was not prepared to strike out the allegation. I also indicated that this would not preclude the Respondents from raising the matter again, once the position concerning Ms Cummings had been clarified.

[35]The Respondents’ other submission concerned the lack of particularisation of specific allegations within the Claimant’s Schedule of Discrimination Incidents (as opposed to the global submission I considered under Issue 1). However, as I went through the Claimant’s Schedule with her, it was possible to obtain additional clarification of the acts of discrimination that she relied upon, such that, in the main, Mr Cole indicated he was now content with the level of particularisation provided. Furthermore, there were some instances where the Claimant decided, after discussion, that she did not pursue the allegation in question. I set out these matters below, identifying where the Respondents still had some reservations about the level of particularity provided. However, in terms of the striking out submission, it was clear to me that any remaining ambiguity was not of a kind or degree that would warrant the striking out of any of the claims. Clarification of the Claimant’s Schedule of Discrimination Incidents

[36]The Claimant’s Schedule was not numbered, but I will refer to its contents by reference to the relevant page and the date given for the incident: Discrimination arising from disability: 27.11.14 The Claimant confirmed the alleged discrimination related to the manner and content of R2’s questioning of her. With this clarification, the Respondents accepted the allegation was sufficiently 03.12.14 The Respondents accepted this allegation was sufficiently 09.12.14 The Respondents accepted this allegation was sufficiently 06.11.14 The Claimant clarified the essence of this complaint was that the Respondents had divulged her personal medical information to wider school staff. She was not able to name the member of staff who had spoken to her on this occasion. With this clarification, the Respondents indicated they did not seek to strike this allegation out. 22.09.14 – 02.02.15 The Claimant accepted she would not pursue this allegation as her latex allergy was not a disability relied upon in her impact statement. 12.12.14 The Claimant clarified that the essence of her complaint was that she was pressurised by Emma Turner, the School Business Manager, into signing a form that referred to her depression. Part of that pressure was an ultimatum given in relation to her reference for a mortgage. After this clarification, the Respondents did not seek to strike the allegation out. 22.09.14 – 18.12.14 The Claimant clarified the essence of this allegation was that R2 had spoken to her union representative without her knowledge and in her absence and this had led to her being given the ultimatum about leaving the school which she set out. With this clarification, the Respondents did not seek to strike the allegation out. Direct discrimination: 03.12.14 The Respondent accepted this allegation was sufficiently Page 5: 02.02.15 The Claimant confirmed the allegation related to R2’s grading of her lesson. The Respondents accepted this allegation was sufficiently 14.02.15 The Claimant confirmed the allegation related to a groundless accusation of her using inappropriate language in the classroom, made by R2 in the email referred to. The Respondents accepted this allegation was sufficiently particularised. Page 6: 03.12.14 The Claimant clarified the essence of this allegation was the lack of support she received from R3 regarding the preparation of her supporting evidence file. She compared herself to a fellow NQT, Danielle Hamlyn. With this clarification, the Respondents accepted the allegation was sufficiently particularised. 27.11.14 The Claimant indicated she did not pursue this matter in so far as it related to her latex allergy, but that she did pursue the complaint that R3 had been unsupportive when she tried to raise breaches of her medical confidentiality with her. The Respondents did not pursue an application to strike out this matter. 29.09.14 The Respondents accepted this allegation was sufficiently Page 7: 29.10.14 The Claimant clarified her complaint related to the email that R3 had sent to her PGCE mentor and the way that R3 reacted when she raised this, telling her that she was ‘disappointed in me and my unprofessionalism’. Harassment: 29.09.14 The Respondents accepted this allegation was sufficiently 14.10.14 The Respondents accepted this allegation was sufficiently particularised 21.10.14 The Respondents accepted this allegation was sufficiently particularised Page 8: 03.11.14 The Claimant clarified the essence of this allegation was R2’s behaviour towards her in the discussion on 05.11.14. With this clarification, the Respondents accepted it was sufficiently Page 9: The Respondent accepted that both allegations on this page (14.11.14 and 02.02.15) were sufficiently particularised. Page 10: 02.02.15 onwards The Claimant clarified her complaint concerned the frequent telephone calls she received from the receptionist and from Sharon Durnan during her sickness absence, which she said were instigated by R2. The ‘inappropriate times’ referred to calls received late at night and at times when she had medical appointments. The Respondents accepted with this clarification the allegation was sufficiently particularised. 29.10.14 The Claimant confirmed the complaint was as clarified in relation to page 7 above (but here alleged to constitute harassment.). Page 11: 27.11.14 The Claimant clarified the essence of this allegation concerned R3 divulging her personal medical information and she gave as examples of recipients a Year 5 teacher, Linda and all the Claimant’s School Learning Assistants. With this clarification, the Respondents accepted that sufficient particularisation had been provided. 09.12.14 The Claimant clarified the focus of the allegation was the contents of her failed NQT report. The Respondents accepted this was properly 22.09.14 - 02.02.15 The Claimant accepted this was a ‘catch all’ that did not add materially to her allegations. She indicated that she would not pursue it. 06.11.14 The Claimant clarified the essence of the allegation was as per the same allegation raised as discrimination arising from disability (see page 1). The Respondents accepted it was sufficiently 27.11.14 The Claimant agreed this allegation did not add to the first allegation on the same page and that she would therefore not proceed with it. Page 12: 05.12.14 The Claimant indicated she did not pursue this matter as it related to her latex allergy. 22.09.14 The Claimant indicated she did not pursue this as a separate allegation, as it was a ‘catch-all’ and an articulation of the effects of the discrimination on her. Page 13: 02.02.15 The Claimant accepted this merely repeated earlier allegations and/or addressed consequences, so that she did not pursue it as a separate allegation. Victimisation: None of the Claimant’s allegations of victimisation identified the protected act relied upon. This was not something covered by the Unless Order, so the Respondents accepted that the Claimant was not in default in this regard. As the Claimant was not able to deal with this topic comprehensively at the hearing it was dealt with by case management orders. In addition: 03.12.14 The Claimant clarified the allegation related to what R2 said to her at the meeting on this date. Page 14: 09.12.14 The Claimant confirmed this allegation against R2 related to the contents of her failed NQT report. 18.12.14 The Claimant clarified she was not pursuing this allegation. 02.0215 This allegation related to R2’s grading of the Claimant’s lesson. Page 15: 14.02.15 The Claimant clarified this allegation related to the contents of R2’s email sent on this date. 29.10.14 The essence of the treatment complained of was confirmed to be as per the clarification obtained for the same incident when raised as an allegation of discrimination arising from disability (see page 2 above). 29.10.14 The Respondent accepted the essence of this complaint was clear. Page 16: 27.11.14 As with the related allegation of direct discrimination, the only aspect that was pursued was the contention that R3 had been unsupportive to her when she raised the medical confidentiality issue. 09.12.14 The Respondent accepted the essence of this complaint was clear. 29.10.14 The Claimant clarified the essence of her complaint was that R3 had revealed to other members of staff that she had made complaints, including to the Year 5 teacher, Linda. 09.12.14 The Claimant indicated this was not pursued as it simply repeated earlier allegations. Failure to make reasonable adjustments: Page 17: The Claimant indicated that she did not pursue the first two allegations on this page (18.12.14 and 22.09.14 – 29.10.14). The other three allegations all related to lack of support the Claimant said she had received from the Respondents. She clarified that the reasonable adjustment she relied upon was the provision of more support to her from R2 and R3, the latter in her capacity as mentor. The extent of the support she would receive had been discussed at a meeting on 18.12.14 and the Claimant had listed the additional support sought. The Respondents did not accept this provided sufficient clarity. I indicated I was not prepared to strike out the allegations; the essence of the complaints was apparent, bearing in mind too that the Claimant was unrepresented.

The relevant facts

[37]On 20 October 2014 the claimant was absent from work. On 21 October Mr Hodges asked to meet with her “to get an update on your state of health and yesterday’s absence” that day after school. The claimant responded in an email, explaining the reason for her absence, the wait for a lumbar puncture appointment, and stating she could not meet after school; he responded “I would still like to meet today so when would you suggest”. The meeting which followed was again the subject of contested evidence. The claimant states that she was asked similar questions – was she a danger to children, why she was still suffering from her ill-health, and was she fit for work? These comments were denied in their entirety by Mr Hodges. We accepted that there was a conversation around the claimant’s health, that at this time Ms Miller had received Ms Sternstein’s response which was causing additional concerns to Mr Hodges. We accept that Mr Hodges expressed a degree of concern about the claimant’s health, and the school’s understanding of her prior medical conditions, also he was at this time concerned about the lack of CEDP documentation and what Ms Miller had been told by Ms Sternstein. However, we did not accept that Mr Hodges’ approach was aggressive or unprofessional towards the claimant.

[38]Ms Miller responded to Ms Sternstein’s email on 24 October 2014, asking for “…further light on this matter … by confirming what was wrong with Cate, when she was unwell and also how many days she was absent …”. She said she was copying in Mr Hodges, and said “I would also appreciate it if you kept this email correspondence between you and I.” (305). Ms Sternstein cc’d her email in response to the claimant and declined to answer Ms Miller’s questions, other than to say the claimant’s final placement “was not supportive…”.

[39]This correspondence caused suspicion amongst the respondents, that information had not been provided by the claimant. Ms Miller accepted that their suspicions were not “addressed” with the claimant, that she could not recall asking the claimant “the full picture”, and that one of the issues for the respondents was the claimant’s health. Mr Hodges was asked the reason why this request was made of Ms Sternstein and he said there were two issues: a need for “more information on her practice” which would normally have been in the career entry profile which had not been received; secondly Ms Sternstein’s first email “contradicted what the claimant had been telling us, so we responded.” On being asked whether there was a concern the claimant was not telling the truth, Mr Hodges answer was “Yes, on this point”. The Tribunal concluded that the respondents’ reasons for asking questions related in large part to suspicions around the claimant’s health, whether there had been any significant health issues the previous year which were carrying into this year and whether there had been a failure by the claimant to disclose this information on her application to the school. Mr Hodges conceded in his evidence that in retrospect it was “misjudged” to ask for this information, he “did not know how this would develop.”

[40]The claimant’s case is that she immediately challenged Ms Miller about her questions to Ms Sternstein, saying that “she went behind my back”, that Ms Miller’s response was “this was information shared between two professionals” and the claimant was “unprofessional”. While Ms Miller did not recollect all this conversation in her evidence, we accepted the claimant’s account that there was a reference to professionalism, and that the claimant stated she considered this to be unprofessional conduct by Ms Miller, the claimant expressed her anger to Ms Miller.

[41]We did not accept that Ms Miller stated she would “step back as a mentor” apart from classroom observation, and would only undertake “selected mentoring tasks..” (350). It was put to the claimant that this was not formally documented, and in fact that Ms Miller was undertaking mentoring meetings and was also, on the claimant’s account, discussing issues such as her latex allergy and car parking issues with her into November 2014. The claimant accepted in her evidence that she could not “recall the exact timing” of when Ms Miller stepped back. She also accepted that there continued to be mentor and classroom meetings “they were awkward but she still was my mentor”. The Tribunal concluded on this evidence that Ms Miller continued to undertake, professionally, her mentoring role with the claimant and that the claimant was not disadvantaged by any lack of contact or assistance from Ms Miller in the claimant’s NQT Term 1.

[42]The Tribunal also accepted that in the claimant’s mind, given Ms Miller’s actions in contacting Ms Sternstein, there was an inevitable deterioration in their relationship, it was no longer warm, and there was a lack of trust from the claimant as she felt very strongly that there had been a breach of trust by Ms Miller in making enquiries about her medical history behind her back. Ms Miller accepted in her evidence that there had been a deterioration in their relationship, in her view “because she did not engage with me, but I was always there”. Mr Hodges again accepted in his evidence that from the claimant’s perspective he could understand how disappointed and upset she would have been by this issue.

[43]On the same date, 24 October 2014, Ms Miller emailed the claimant her objectives, and providing points to how to achieve them: including developing lesson time management skills; incorporating 5Rs; develop skills to deploy staff effectively (304). The Tribunal accepted that these were supportive objectives, ones which the claimant appreciated were provided to assist her. The claimant had further mentor meetings with Ms Miller thereafter – 3, 12 and 17 November and which work related issues were appropriately discussed between the two of them (e.g. 309-311).

[44]On 5 November 2014 the claimant told Mr Hodges of the date of her lumbar puncture – 19 November - and she advised that this may be a 3 day process and more recovery time may be required (312-3). Mr Hodges clearly wanted to discuss in person, and said so in his email response. The claimant says she met with Mr Hodges, who queried the length of time the process would take as he believed the process would take less time. We accepted that Mr Hodges was entitled to ask questions on the length of the process, at this time the claimant’s absences were building up, and up to a week’s absence was clearly an issue for her in her NQT first term. Whilst the questions were clearly personal to the claimant, the Tribunal did not accept that any questions asked were overly intrusive or unacceptable in the circumstances.

[45]On 7 November 2014 Mr Hodges wanted to meet the claimant again, the claimant emailed saying “I have an important meeting to attend now after school, so will be unable to meet to discuss the lumbar puncture procedure further”, adding that she would forward the neurology letter to him (315). In response Mr Hodges asked again for a meeting, and emailed again on 11 November 2014 “… linked to these health issues, I had intended to discuss your teaching practice with you”. He raised concerns about her career entry profile and he referenced Ms Miller’s email to Ms Sternstein, “…and I understand that your tutor explained this had not been completed because you had been forced to start a practice again … after a lengthy period of ill-health…. Although I intend to talk to your tutor directly about the career entry profile document can you clarify for me the issue around your training and practice? Can you also outline your health issues and absence periods during your training? It is important that I have clarity and understanding .. in order to know how best to support you” (321). On 13 November the claimant responded with her explanation of what had occurred: an issue with her first placement school (which she said subsequently lost its ITT status) and a decision for the claimant to continue her final placement to end of summer term; she refers to having suffered from “stress and exhaustion on top of my current diagnosis of fibromyalgia” and other issues. Her email states her “disappointment” at Ms Miller’s request for health information “…sent without my knowledge…” that she considered it to be “unprofessional”. Mr Hodges response was that Ms Miller had not been unprofessional, his concern was with the conduct of Ms Sternstein “who has created an issue … I will pursue the matter directly” (320).

[46]The Tribunal considered these emails carefully. While this emails do not form part of the allegations within the claim, we noted that Mr Hodges was expressing concern about the claimant’s absences and health during her PGCE year. We appreciated that Mr Hodges had at this stage genuine and serious concerns about the claimant’s health and its potential impact on her NQT year, that he was genuinely seeking “clarity and understanding” to enable her to be supported as best as possible. He also had, we considered, genuine and reasonable questions to ask the claimant about her PGCE year and its potential impact on her NQT year, he also wished to know more about her current state of health, in part because of its potential impact on her classroom teaching. These were, we found, all reasonable issues for him to raise.

[47]However, the Tribunal also concluded that Mr Hodges was doubling-down on Ms Miller’s contact with Ms Sternstein, saying it was appropriate, and it was Ms Sternstein’s conduct he was concerned about. We concluded that Ms Hodges response had the effect of causing the claimant serious concern. She was raising what she regarded as an attempt by Ms Miller to gain confidential medical information and was questioning why, she was raising concerns about Ms Miller’s conduct. However these concerns were being peremptorily dismissed with no attempt made to address them, on an issue where she clearly considered Ms Miller to have acted unprofessionally and in breach of confidence. We concluded that this was an intransigent approach by Mr Hodges towards an NQT teacher. We concluded that there was as a result a failure to address the claimant’s legitimate concerns. We wondered why HR advice was not taken before taking such a major step as contacting a tutor asking for medical information, one with implications for data protection, and medical and professional confidentiality. While Mr Hodges says he was asking questions on issues relating to the claimant with Babock on their regular visits to the school, it appears he did not do so in relation to this issue. Noting Mr Hodges concession that he could now understand the claimant’s concerns about medical confidentiality, we concluded that if a slightly more reconciliatory approach had been taken, recognising the claimant’s concerns but also addressing some of the issues that were of concern to the respondents, better relationships may have been maintained between the claimant and respondents.

[48]The claimant first logged onto the Babcock website, onto which she had to download her terms material for the end of term report, on 11 November 2014. She and Ms Miller had a Weekly Mentor meeting on 12 November at which the claimant accepts they discussed the need to set up the folder and collect evidence for her file. The claimant’s claim of a failure to make reasonable adjustments includes an alleged lack of support from Ms Miller, and a significant issue in the evidence was the support given to her in comparison to that given to her comparator. Two pieces of evidence were, we considered, conclusive on this issue. Firstly, the claimant says that she and her comparator compared their evidence and it was of comparable standard and quality which suggests that the claimant believed her evidence was good enough. Secondly, the claimant’s evidence was that her evidence was paper-based and that Ms Miller did not offer to look at it (nor did she offer it to Ms Miller to check). Ms Miller’s evidence, which we accepted, was that she did check some of the paper documentation and they discussed improvements and that more evidence was needed, but that the portfolio needed to be uploaded, which the claimant failed to do until it was too late to check and properly advise on.

[49]The claimant also accepts that her evidence had not been uploaded, and she only uploaded it a few days before it was due. We noted that Ms Miller’s parttime working week meant it was difficult for her to check this material before the deadline. We noted that the weekly mentor meetings did not suggest the claimant was raising any concerns about her progress on this evidence or was not aware of what was required. We noted Ms Greenfield’s evidence that the aim of the NQT material is to “show the developmental trail of the NQT. To start with objectives from end of teacher training and work on objectives which should be looked at ongoing”. We considered that had the claimant provided her evidence, Ms Miller would have offered her professional view on the materials. We concluded that this is not an issue of inadequate support by Ms Miller or anyone else: if the claimant was struggling with evidencing her progress with the appropriate material for the term 1 NQT report she could have said so, and Ms Miller would have assisted; and on the claimant’s own case she believed her material was of adequate standard.

[50]The claimant was off work for the lumbar puncture process from Wednesday 19 to Friday 21 November 2014. There was a further issue on Monday 24 November, as it appears that the claimant had not confirmed on the 21st whether she would be in on the 24th, and on the Monday she had not confirmed by 2.30pm whether she was going to be absent the next day. The school secretary rang her and the claimant confirmed she was hoping to be back to school on Thursday 24 November. Mr Smith characterised this failure to contact the school on time, “it’s a frustration, we’re a big school and organisation of teachers is significant. But this was not a negative personal view of the claimant.” The claimant’s evidence was that she understood that the school was aware of her absence, however we also noted that any communications had not been to the school office by 2.30 as was required.

[51]The claimant was off work again ½ day Tuesday 2 December 2014. This was a day on which the claimant was aware she was meant to have a lesson observation having been told so the previous Friday (25 November). According to Ms Smith and Mr Hodges this absence was not communicated and at 19.01 Mr Hodges emailed the claimant - “The office team tried to contact you on a number of occasions today without success …. Whenever you feel fit to return I would like to meet you for a return to work interview” (345). The claimant’s view in her evidence is that she would have texted her absence to Ms Cummings “… or I may not have known at this stage whether returning or not the next day. This was sickness going around the school.” The Tribunal accepted that this was another example of the claimant not fulfilling the reporting obligations of letting the school know by 2.30 whether she would be in the next day.

[52]The claimant met with Mr Hodges on 3 December; she emailed her union rep after this meeting, saying she had a “particularly difficult day” having been told, she says, that her illness meant she would not pass her 1st term “I was told today that because of my illness I am not progressing … and so would not pass even if my mentor looked through my evidence”. She stated that other NQTs did not need to complete their evidence until next week or the week after…” and that Ms Miller was no longer going to be her mentor, apart from for classroom observations. “… I am worried now … they don’t seem to want me in the school…” (351-2).

[53]Her claim states that at this meeting with Mr Hodges, she was told that she was “25% worse than any other teacher in the school”, would she hit out at children, was she emotionally stable enough to undertake her role? We note that these allegations are not mentioned in the email to Mr Hodges. We accepted that this was a very difficult conversation for the claimant, and Mr Hodges did reference her absences, and he did raise his concerns about the effect of her absences on her progress, and he did raise the potential effect of her symptoms and absences on her classroom teaching. Again, we considered it was reasonable to raise these issues with the claimant. While they may appear intrusive questions, we accepted that Mr Hodges needed to be sure that her classroom performance was not being affected, that her pupils were in no-way being disadvantaged.

[54]We accepted that Mr Hodges told her that she would not likely be passing her 1st term NQT; this was, at this time, a position we considered he was entitled to take, based on the evidence he had at that date of the claimant’s absence record and on the lack of visibility at that time on the claimant’s evidence file. We note that her email is in this respect similar to Mr Hodges comments on 8 December in which he says that without looking at the claimant’s evidence “… I still don’t see how we can confirm she is meeting the expected standards with 15 days off”. Mr Smith responded saying he had spoken to Babcock who advised “… if we have evidence that she is not meeting the standards then she is to be given an unsatisfactory for this term. This will then automatically trigger support from Babcock who will come in the next term and support the school and Cate with moving forward. She said that 15 days off in itself is enough for it to be unsatisfactory”. To which Mr Hodges response was “simple as that, the report should be more straightforward to write then.” (355a-b).

[55]The written report has the following comments against different Teachers Standards: “High rate of absence and professional conduct has made it very difficult to evidence this standard…”she regularly arrives late to school and is not prepared for the school day. She often leaves early …”. There is reference to a “reluctance” to attend meetings, and “a number of concerns” about her wider professional responsibilities. When absent she “has not always notified the school in a timely manner…” and “we also have serious concerns regarding her communication with her mentor and year leader … She has sometimes not appeared at meetings without prior reason …” On the Teachers Standard “Personal and Professional Conduct” the report states “we have a number of concerns about Cate’s performance this term. The first being her attendance due to ill health. She has missed 15 full days of teaching this term and … a number of year group and whole staff meetings. She often arrives at school at 8.30 unprepared for the day ahead. Our second concern is over her professional conduct. Cate has not been willing to embrace the support offered by an experienced member of staff and has not acted with integrity at all times. She has often said one thing to one person and something different to another. Her communication generally has been inconsistent where she has not always notified the school in good time of absence, has avoided meetings with both the mentor and headteacher and has not followed up on actions as required. She fails to understand the importance of her NQT years…” Her target was set “to work with the school to overcome the above identified weaknesses” (364-7).

[56]A meeting was to take place to discuss the report in person; however when asked to meet the claimant emailed saying that she was unable to meet that day, she said it was her only free evening of the week. In his email enclosing the report, Mr Hodges stated “as we discussed last week, there are some obvious challenges to reviewing your performance this term due to your absence rate, this has unfortunately been made more difficult by a number of recent sick days coinciding with some of our key monitoring points like your observations….”, stating that she would be marked as unsatisfactory, that a member of the NQT team would be in touch to arrange support.

[57]In her evidence, the claimant was clear that the work she submitted was of a comparable standard to that of her comparator whose work was graded and passed. The respondent’s case is that the uploaded documents were of poor quality, often pasted copies of school policies. We accepted the respondents evidence that the work uploaded was not adequate, and that because she had uploaded much of her work at the last minute Ms Miller did not have time to check it before it was assessed. We accepted the claimant’s work was not of the same standard as that of her comparator, that it would be easy to tell from any independent analysis of the uploaded work whether it was of acceptable standard or not; the claimant has produced no evidence that this was the case. An issue arose in the evidence given the apparent speed that some of the documents were read before being assessed. Again, we concluded that experienced teachers would know what they were looking for and could clearly assess that the documents were inadequate in the timescale.

[58]It was put to the claimant that the report contains positive issues – and there are positive comments about her teaching, good behaviour management and communication, and that this was a “developmental report” which could be improved on. We accepted the evidence of Mr Greaves and Ms Greenfield that an unsatisfactory first term did not mean that the claimant would fail the whole year, that in fact this would be a trigger for additional support to assist the claimant to reach the standard by the end of her NQT, also if she had over 30 days absence in the year her NQT would be extended.

[59]The Tribunal also accepted that on the available evidence the respondents were justified in concluding that the claimant had not met the appropriate term 1 NQT standards, and they were justified in failing the claimant in this first term. The claimant’s absences were significant, 15 teaching days in one term, and we concluded that the respondents were justified in their view that her uploaded work did not contain the evidence required to show that she was meeting teacher standards. The claimant had also not always notified the school in time of all her absences, again a genuine issue of concern which the claimant was aware of.

[60]However, we accepted that the term 1 NQT report was an official appraisal document. We accepted that the contents of an NQT report should not be a complete surprise to a NQT. Mr Greaves evidence, which we accepted, was that before the report was completed he would expect that the employee would have a chance to understand and “meet the allegations”. We noted the Statutory Guidance which states for “Formal Assessments …NQTs should be kept up to date on their progress. There should be no surprises.” (document’s own bold). While the respondent’s case is that the claimant was avoiding meetings, equally the respondents did not at any time inform the claimant that a meeting was required to address their issues of concern.

[61]We accepted that there were phrases in this report which could have a significant effect on the claimant’s future career: the concern over her professional conduct, not embracing the support of her mentor; and not acting with integrity. We noted that many of these issues had not been raised with the claimant, and they were clearly going to be issues of contention: integrity; saying one thing to one person and something else to another; deliberately avoiding meetings; not following up; failing to understand the importance of her NQT year. One significant issue, the statement that the claimant failed to embrace the support of her mentor, was, we found, an issue which arose in part from the failure of the respondents to appropriately deal her concerns over the PGCE tutor contact.

[62]Mr Hodges reasoning for adding the issue of integrity was he said in his evidence because “I did not think she had been fully transparent regarding her previous practice and issues we may have supported her with, for example her potential health issues in practice, and she said no health issue, that the training school was at fault. And now, since understanding the number of significant health issues - it was her right not to disclose health issues, but she did not share so did not know how to support. And she did not tell us about her practice, we did not know how to support her. It did not need to be hidden…”

[63]In her evidence on the issue of effective communications with other staff members, Ms Miller said that the issue was “not engaging properly”, not an issue of the manner of communication. She accepted that the clamant had good relations with some members of staff, including TAs and other teachers.

[64]On the issue of ‘integrity’ and the evidence the respondents relied on to reach their conclusions that the claimant lacked it in some respects, we concluded that the respondents did not evidence at the time, and have not evidenced in these proceedings, their view that the claimant was deliberately avoiding meetings. The meetings she is alleged to have avoided were often arranged at short notice after core school hours; on one occasion her response was that she had tried to look for Mr Hodges, who was not available. On another, for example 7 November, she gave a reason why she could not meet. We noted that this was in the context of a deteriorating relationship because of the request for medical information from the PGCE tutor, which Mr Hodges now accepts was misguided and which we found caused the claimant to lose confidence in him.

[65]We also concluded that the issue of ‘integrity’ had not been raised with the claimant, and that in stating the claimant lacked integrity the respondents were relying on issues not discussed with her. While the claimant accepted in her evidence that the report would reference absences, and we found she was aware she may well fail the NQT term 1, she was completely unaware that it would suggest she was lacking integrity. We noted also that Mr Smith accepted in his evidence that at this stage, writing the report, the respondents did not seek the advice of its HR providers, Babcock, that the issues with the claimant had not been flagged as a concern, that they had not sought any advice at this stage on NQT support available for the claimant via Babcock. Mr Smith’s evidence in relation to individual absences was that the claimant acted appropriately – for example the page 253 urgent Dr’s appointment – he acknowledged that he did not seek a Dr’s letter; and he accepted that the claimant’s response was professional and contained “all the information” needed.

[66]Mr Greaves evidence, which we accepted, was that if there were issues of integrity – for example not providing medical letters, of suspicions about the amount of time off, he would “expect the school to get their HR consultant to investigate and advise”. Mr Smith’s evidence was that he accepted at the time of absences that they were genuine absences, that it was not an issue of genuine absence but “the issue was timely receipt of information around absence”. Mr Smith accepted that there should be HR involvement if there were concerns about such issues, that Babcock were not involved until the NQT report, his evidence was that he did not think about whether or not HR should or should not be involved, he also accepted that as far as he was aware there was no enquiry initiated into the issue of the lack of evidence of medical appointments.

[67]The claimant had been in contact with the Union and her rep Mr Greaves. He told her that it was said it was too late to change this term’s assessment, that he had been in contact with Ms Mabson (HR of Babcock) and Ms Greenfield (NQT support Babcock) both of whom he had worked with in the past. His view was that “…we can approach the other two terms differently with the right level of support or restart NQT…”

[68]The claimant considers that her application for a mortgage letter was being held as conditional on her signing an OH referral form. The email from the school secretary reads as follows: “I would be grateful if you can sign and pass the form back to me … You can also check the letter I have prepared for the mortgage company…” (373). The Tribunal was satisfied that there was no intent to make the OH form receipt conditional on the mortgage letter even though they were referenced in the same email.

[69]A further issue arose over a medical appointment. On Ms Cummings account given in an email, the claimant informed her on Friday 12 December she had an urgent neurology appointment the following Monday which she was trying to change (383). On Sunday evening, she emailed Ms Smith saying that she had tried to rearrange the appointment but had been unable to. Mr Hodges asked for an appointment letter, (380) saying he was “concerned” that the claimant had only informed school the previous evening which he stated as “unreasonable” (383).

[70]On 15 December 2014 the claimant wrote a detailed timeline of events in response to the Term 1 NQT report, saying that it was “completely fabricated”, that many of the concerns had not been raised previously. She detailed events from September 2014, including issues around her absences; she states that she was asked whether she was a danger to children, whether she would ‘lash out’ at the children because of the medication she was on. She references the issue around the CEDP and the request for medical information, that Ms Miller told her how “disappointed she was” and that there was then an issue between the two of them, “the conversation dragged out over two weeks…”. She says that Mr Hodges seemed not to believe the length of time it took for a lumbar puncture when he called her into a meeting; she references being spoken to in a derogatory manner by staff over disability related issues, and parking space and gossiping over her latex allergy. She said that after the lumbar puncture she was “ordered” to see Mr Hodges and asked to “explain why I had needed recovery time … Was I well enough to teach? Was I emotionally stable? “ She references being told she was “25% worse” than any other teacher and was she emotionally stable enough for the role, and whether “the condition would make me hit out at children or staff etc”. She says that she did not receive assistance from her mentor for her evidence file and had to research this online. She says that another NQT added the same evidence as her “and was deemed acceptable”.

[71]Mr Greaves stated in his evidence that this complaint was passed to Ms Greenfield in advance of the 18 December meeting between the 3 of them to discuss the NQT report. For Mr Greaves, the situation was not “clear cut” because the absence was “extensive” and there appeared to be limited evidence of evidence to support her progress and, as he stated in his account of the 18 December 2014 meeting in a statement dated 25 September 2015, “the school had queried the documentation surrounding several hospital appointments”. In his evidence, he stated “the main thrust of meeting was to do with evidence of progress in NQT assessment and evidence was insufficient to make a positive report”. Ms Greenfield’s evidence, which we accepted, was that the PDP portfolio should “be uploaded on an ongoing process” throughout the term, that the focus should be “a trail from beginning to the end of term … as we need to see the development process”.

[72]One issue which arose was that the meeting with the claimant was due to start at 10.00, the claimant found out that Mr Hodges, Ms Greenfield and Mr Greaves met at 9.00. Mr Greaves described this as his “normal procedure” that when he discussed an issue for the first time it was “curtesy” to discuss with the Headteacher and found out the issues from the school’s point of view. We accepted that this was Mr Greaves’ explanation for this prior meeting, that it was his standard practice.

[73]The parties all accept that the claimant became very distressed at the meeting, there was a dispute as to what occurred, whether Ms Greenfield was dismissive of the claimant’s concerns and put up her hand to stop the claimant talking. Mr Hodges evidence which we accepted was that he did not recall this, that he would “be very surprised if this would happen - I would suspend the interview as not appropriate behaviour.”

[74]In his evidence to Tribunal Mr Greaves he said that “we would have discussed” the claimant’s concerns about the accuracy of the report, and that Ms Greenfield “would most certainly have checked and investigated these allegations”. Mr Greaves accepted that the gist of what the claimant was saying was that ‘I am unwell and the way I have been treated is unfair’. He said that it was his expectation that Ms Greenfield “would be the first person to investigate and advise me of what she has found.” We accepted that the role of Ms Greenfield would be to consider whether the claimant’s concerns had any merit, later in his evidence he stated that Ms Greenfield was “very hot” on issues on disability, and he would have expected her to have addressed the claimant’s concerns. In her evidence Ms Greenfield accepted that the claimant “may have presented” this document, “but I did not have an opportunity to go through those claims as the claimant became upset. At this time I withdrew from meeting at claimant’s request, as I left at claimant’s request and I left these issues for Mr Greaves to deal with as a meeting with his member.” The Tribunal concluded that the claimant’s written concerns were never taken forward or considered by the school or Babock despite being presented at this meeting.

[75]One of the options for the claimant was to stay at the school and carry on the next term, another was to leave, the NQT report would not be submitted, and she could start again; that it was possible to stay on and recover the position by the summer. An email sent by Mr Smith the day after the meeting with Babock sets out the options, and adds that if her decision is to stay “… the assessment is submitted, Babcock come in and provide intensive support, we up the levels of monitoring and consider disciplinary.” (429a). We accepted that this was consideration of disciplinary proceedings against the claimant in the future – that this was an option if the intensive support did not work or if there were other issues arising with her performance or conduct.

[76]On 19 December 2014, Mr Hodges was asking Mr Greaves whether “it is ever feasible to remove a teacher …due to concerns about someone’s ability to work with children”? (429c). We accepted that this was a question which at this time Mr Hodges was concerned about – enough to be open to the claimant’s union rep – and it mirrored questions asked of the claimant – and at this time Mr Hodges had the evidence of the 12 December absence and failure to contact the school.

[77]The claimant’s decision was that she “fully intends to return” the next term. At the beginning of the Spring term, Mr Hodges stated that a support plan was being prepared, and that her mentor would continue to be Ms Miller who “can meet you to maintain your regular meetings and offer support as required” (432); a date was set for an observation and mentor meetings. Ms Greenfield was involved in the preparation of the action plan. One issue arose with Ms Miller’s continued mentoring. The claimant’s case is that another teacher was meant to be appointed as a mentor but was not. Mr Hodges accepted that at this stage Ms Miller had stepped back from informal mentoring. We note that the Mentor minutes of 21 January 2015 state that Ms Miller’s “role as mentor was outlined”; the other teacher’s “presence in the meeting was clarified”; support was to be provided to the claimant by Ms Miller and two other teachers; issues were raised with marking of Maths books which “was discussed in more detail”. We noted the detailed issues and action points arising, that the claimant asked questions, that there appears to be no significant dispute or complaint from the claimant on the issues raised by Ms Miller at this meeting. We accepted that support was available to the claimant from Ms Miller and two other experienced teachers.

[78]The claimant had postponed a meeting at late notice arranged for 16 January 2015 to discuss her NQT support plan. Accordingly Mr Hodges sought advice on next steps from Ms Greenfield and then wrote to the claimant on 3 February 2015 requesting a meeting “prior to your return to class to discuss a number of outstanding issues causing concern” (470). The claimant’s marking had been checked, and it was found that some pupils’ books had not been marked since October 2014, and others not marked to an appropriate standard (481-3). Advice was sought from Babcock, who advised “In my view her conduct in particular in relation to her marking would be regarded as a disciplinary matter” (439).

[79]On 2 February 2015 the claimant’s lesson was observed by Mr Hodges. The claimant went home that afternoon, and did not call in on 3 February, she was emailed by Mr Hodges (470) and referred to OH on 5 February. On 9 February she emailed Mr Greaves saying that she had suffered harassment and discrimination, that “the last straw” was that her lesson observation “was failed and described as poppycock. They have created an environment in which I cannot be supported or succeed in my NQT year. It seems as though I am resented and discriminated against for undergoing medical investigations, being ill, and taking my grievance to the union.” (479).

[80]Mr Hodges evidence was that the observation was balanced, shown by the notes (613a-613d & 613h-613l). The claimant’s case is that she taught the lesson prepared by another teacher, as is normal, but the “issue was the work sheet did not match the video which did not match the commentary. But this was not my lesson, it was agreed lesson plan…” Mr Hodges view was that the lesson was poorly delivered. We noted that on the claimant’s case there were glitches in this lesson, and we accepted that Mr Hodges view that the lesson was poorly delivered was not necessarily unreasonable; it was a snapshot lesson. We noted that at this stage Mr Hodges would have been of the view, in discussion with others including Ms Cummings, that there were significant other issues continuing on from the previous term, including missed meetings in January. Also, significant marking issues were coming to light, these would have been a factor in Mr Hodges mind in what was clearly a difficult discussion at the end of this lesson.

[81]In her evidence the claimant stated that one issue with marking was that supply teachers had not marked books during her absences. That may have been the case, but the Tribunal considered that this did not explain the apparent lack of marking books during the periods when the claimant was at work; and we considered that the respondents were justified in raising this issue with the claimant as an issue to be investigated.

[82]On 11 February 2015 the claimant was sent a letter by email and post by Mr Hodges inviting her to a meeting to discuss the following issues (487-90):a. Level of absences

b. Absences not supported by any medical evidence

c. Refusal to allow an OH assessment

d. Failure to follow school policy around reporting absences – and giving examples of 15 December 2014 and 2 February 2015 and failure to report next-day absence by 2.30pm

e. A failure to supply medical evidence for the current 9 day absence

f. A lack of marking and feedback to pupils – in some cases from before October 2014 half-term

g. A failure to attend the following meetings since start of employment: 7 INSETs meetings, 6 weekly year group planning meeting and 8 mentor meetings

h. An issue of using inappropriate language in the classroom and parental complaint

[83]The claimant forwarded a medical certificate on 13 February 2015. On 23 February 2020 she sent a detailed rebuttal to Mr Hodges, stating amongst other issues:a. Last term’s absences were “entirely unavoidable” due to hospital tests, appointments and illness

b. All appointments bar one had been communicated in good time, and there was a reason for what was an urgent 15 December 2014 appt which she had discussed with her Head of Year (as corroborated by Ms Cummings)

c. The only two times she had left school early was for appointments she had discussed in advance and appointment letters shown at the time (and she enclosed these)

d. She stated she had provided significant information about the lumbar puncture and the procedure, but that on 5 November 2014 “you called me over and mentioned .. .that a lumbar puncture only takes a day… I stated that I felt I that I wasn’t being believe or trusted…”

e. The issue with Ms Miller’s contact with her PGCE mentor and Ms Miller “stepping back” as her mentor

f. She had been the subject of gossip based on her medical information

g. The support and guidance this term had taken on “a very negative, humiliating and intimidating tone…”

h. She had not used inappropriate language in class

i. Mr Hodges had referred to her last observation as ‘poppycock’

[84]The claimant states that the “stress and worry of the medical investigations and the possibility of having a life-altering disease such as MS, was only worsened and added to by the anxiety, distress and misery caused by the victimisation and harassment I was receiving at school…”. She requested an early release from her contract based on ‘the cessation of my NQT year with no detriment on my record’ (497-500).

[85]In response, Mr Hodges said that a number of allegations had been made “which the school takes incredibly seriously” and she was invited to use the grievance procedure “before you request to leave your post”. On 5 March 2015 Mr Hodges informed the claimant that her NQT report had already been submitted to the authority, that she had not added any comments to this report. She was asked again to confirm that her intention was to resign with immediate effect (507-8) and on 9 March the claimant stated that she was seeking advice and would respond (510).

[86]The claimant then wrote a detailed rebuttal of some of the points made by Mr Hodges, including that she had not received a comprehensive induction, and was not aware of the policies or guidance on the school’s hub; that she had raised issues which constituted a grievance in October 2014, and Ms Greenfield was given details during the 18 December 2014 meeting. She stated that it had never been raised with her that she had “lacked integrity … in any of our numerous meetings”. She stated that she wished to resign “but only with the clear record that was offered in December”, describing the report as “fabricated … a vitriolic and personal attack, rather than being an honest comment on by teaching…” (514-5). In response the claimant was told that the NQT report “was now a matter of record and cannot be withdrawn…” and she was asked to clarify her intentions. The claimant resigned on 18 March 2015. In response, Mr Hodges said that the Local Authority (Babcock) had reconsidered the NQT report, “and they continue to agree that it is reasonable and entirely evidence based. Much of this evidenced was of course your evidence file which was scant and lacked detail.” (522)

[87]On 1 April 2015 Babcock wrote to the claimant and invited her to add her dissent to the Term 1 NQT report in the NQT comment box “…and I would invite you to do so, so that your concerns are a matter of record”. She was advised that it was not possible to restart induction as of Term 1 and that all potential future employees would be able to see the report on the NCTL database. The claimant was informed that she could work on casual supply basis for a period not exceeding 5 years following which she must find a post for Induction (523-4). Submissions

[88]Both parties provided comprehensive written submissions which the Tribunal considered along with cases provided.

[89]Mr Burrows for the respondents raised at the outset one issue which the claimant was raising – whether the claimant’s decision to resign formed part of a claim; the respondents’ position is that her dismissal does not form a claim of discrimination arising from disability, as she alleges.

[90]Mr Burrows general observation was that the parties had “very different approaches” to the evidence: in brief the claimant places reliance on documents she generated which were not contemporaneous - not the exact/precise same time as events she records/narrates. Albeit that they are closer in time than witness statements in these proceedings. But these documents should be treated with significant degree of caution, see paragraph 13/14 written submissions – for example the claimant says that one absence was sickness/bug, but her evidence was she was feeling too upset/low to go back into work. The “claimant herself makes this concession, from documents created for a formal purpose” and all documents have to be considered very carefully against the remainder of the documentary matrix. The Tribunal has been taken through bundle - and can accord proper weight to each of the documents on which the claimant relies to make her case.

[91]Mr Burrows accepted that the claimant had not sought deliberately to mislead, but her perception of events was not recorded immediately at the point they occurred, but not a considerable time after, “but they were not as accurate as they should be.”

[92]By contrast the respondents evidence is largely based on discussions, and an absence of documents “is entirely consistent with the respondents approach throughout the 1st term”; to start writing formal letters / emails “puts an entirely different complexion on the issue” than the respondents say they were trying to achieve. This is an educational context and the claimant was an NQT in induction. Training/mentoring of the claimant was occurring “and in order to maintain the supportive environment around the claimant that the respondents maintain was their approach – including under hostile questioning”, formal emails were unhelpful in this context. Mr Burrows accepted that there was “a formal drawing back” after 1st terms report by Ms Miller.

[93]Mr Burrows argued that the claimant’s case was to “to take phrases /short sentences and turn them to support her case”. It is for the tribunal to judge and assign weight to these phrases and, where ambiguous, look back to their context – an educational setting and consider the respondents view of the evidence in relation to these documents. The end of term report “needed to be sufficiently clear as an informal approach was not working.”

[94]Mr Burrows stated that the lack of integrity occurred because the claimant was “not willing to take support” but that this was an issue of integrity - saying no issues at previous placement and then transpires that she was very unwell which was unknown to respondents at that point - and ill-health had led to absence. Consider page 290 (Ms Sternstein’s account) and what is said by the claimant to Ms Miller and 321 (the claimant’s email of 13 November to Mr Hodges) - spot that the claimant “has said one thing to one person and something else to the other. This is the integrity issue … She has created the impression that she is saying one thing to one and another to another.” This therefore does not arise out of the claimant’s disability, but arises out of a disconnect between what the referee has said and what the claimant has said, which arises out of the Career entry profile.

[95]The tribunal should “consider carefully the weight it assigns” to documents generated by the claimant, and the weight it assigns on phrases in emails; also that it did not document every conversation should not be viewed as negative when reviewing the respondents oral evidence.

[96]Knowledge of disability: the claimant did declare medical issues (paragraphs 19-26 of submission); but at 213 (email from MNASS on claimant’s fitness for role) the clamant declares herself as fit for role. The claimant had conversations about Fibromyalgia and potential MS and on 29 /30 Sept, had discussions with Mrs Miller on clinical investigations. But this does not get away from the simple fact that there was much more at play - the medical records show more than fibromyalgia. The respondents were “hamstrung” by the IMAS report, and the claimant did not engage meaningfully as she should have done.

[97]Groupthink? No – Ms Cummings and Mr Hodges were new in post; the union rep’s involvement, Ms Greenfield – “all recollect and their evidence carries significant weight on the events in which they were involved”. Conspiracy to remove the claimant and unfairly mark her portfolio? This simply does not match what R and its witnesses say. Ms Greenfield and Mr Greaves had an obligation was to call out adverse behaviour.

[98]On the claims, Mr Burrows argues that the direct discrimination and discrimination by association claims were not made out. No comments were made as alleged; the claimant may have been asked to outline issues related to health, but this was not an interrogation, and it is within the statutory guidance to raise any issues, both the mentor and the NQT. There was no statement that she may “lash out” or was a risk to pupils. There was a dispute whether some meetings took place as alleged by the claimant, or not.

[99]There was no lack of support given to the claimant on the claimant’s portfolio, whether or not the mentor - mentee relationship was as described, bear in mind that it was unusual for a mentor/mentee to have adjoining classrooms and be in the same year group. There was adequacy of support.

[100]At the end of the 1st term options were presented to the claimant “whichever choice the claimant makes there has to be a choice of benefit and risk. Either continue with NQT support function or change placement and waive 1st term in order not to have an unsatisfactory 1st term’s report”.

[101]Mr Burrows argued that the threat of the disciplinary issue was not about the 1st term “It was not considered at the outset of the 2nd term.” When it was raised it was “justified to do so as it related to marking…”. Mr Burrows argued that the issue of marking “Can’t be avoided, it must be tackled, if not addressed how can you bring its seriousness to the claimant’s attention … this was an exercise of discretion.” Mr Burrows argued that any member of staff who did what the claimant did - not informing of returns and absences, not marking, “would have rendered themselves open to worse sanction”. Any hypothetical comparator would be treated the same - off work 15 days and who had the same portfolio issues.

[102]Mr Burrows accepted that there was “actual knowledge of potential disability” from 29 September, and that s.15 EqA was engaged from this date. But the allegations did not happen as the claimant recalls. On causation, the treatment has to be unfavourable arising as a consequences of something arising out of disability. The more causal links there are the less likely to fall with s.15 test. and here, the issues are not absence themselves, “the issue is how absences are handled, the communications around absence.” The issue of 15 days absence – 6/7 days disability related? Even if these days do arise out of disability the s.15 justification defence applies. The legitimate aim of complying with the statutory induction and the necessity of evidencing this, and the effective running of a large school. Proportionality: even where there is a lack of evidence arising and lack of marking arising out of absence, and this arises out of disability, the respondent only highlights the claimant’s progress based on evidence she is required to present. Also proportionality may require an extension, but only when 30 days absence is reached. The unsatisfactory grading was proportionate as it triggers support and an independent view on provision – this is entirely proportionate. It does not cast them out, it’s not said ‘that’s it’, although this may have been the claimant’s perception. “This is what she sees. But this not the outcome of that term. Proportionately comes with additional support.”

[103]Reasonable adjustments: there was no engagement from the claimant and no knowledge by the respondents. The respondents did not have enough information from IMAS as the claimant was fit for work; the claimant had opportunities to engage with OH which were missed, and the claimant failed to provide information.

[104]The claim of Harassment – the allegations do not equate with the respondents wanting to keep the clamant in school and help her progress. But this is the claimant’s perception. The report – the “fundamental purpose of the report is developmental, and sometimes we have to hear what we do not want to hear to develop.” And report is not one-sided, it does bring out the positive as well as the negative, notifying where development is required. In any event the respondent was not aware she was seeing union until early December, there was no protected act before mid-December And the continuing performance discussions are not in itself victimisation.

[105]Mr Wynne for the claimant argued that the respondents were aware of issues related to her health, they wanted her to attend OH because of this knowledge, and the claimant was open about her health - - 234-236 states that for her fibromyalgia she may need support and time off – the respondents were “alert to the possibility”. Also, on the respondents own case, Mr Hodges is asking to see the claimant to see how she is – and she discusses with Mr Smith “tremors and medication, so the claimant is revealing lots to the respondents”. On her health issues prior to starting with the school, this was not an issue for adjustments, and she did not know that her condition “was a subtle complex illness and which arose to be significant in September 2014 … a re-emergence of a latent condition.”

[106]The big issue argued Mr Wynne was the absence for the Lumbar Puncture, this led to her being marked as unsatisfactory -and this is connected with reemergence of Guillain – Barre, and all this occurred through the MS potential diagnosis.

[107]The issue of danger to children and what was said/ dates of meetings. Mr Hodges did make these remarks – and see his email to Mr Greaves saying the same - ‘is it possible to remove someone from the classroom…’ – the same issue.

[108]The respondents therefore clearly had imputed knowledge of disability by the end September 2014.

[109]On the issue of integrity; the respondents rely on an email exchange where they are “talking at cross-purposes”; there was no suggestion that the claimant’s PGCE s mentor realised how her remarks were going to be interpreted. The respondents argue ‘integrity’ but they did not challenge the claimant, or asked her ‘tell us more’; it’s just been ‘left’ as an issue. And the claimant’s explanation and the respondent saying she has provide different evidence “It’s the approach Mr Hodges has taken to the evidence - this suits story the of the claimant not telling the truth”. If their thinking was that this conduct amounts to a lack of integrity, “they had to get to the bottom of this - as in fact the accounts are not irreconcilable.”

[110]The issues of lack of integrity raised in the NQT report – 367 and the examples that follow – “if these are the examples then it doesn’t follow that the conclusion is a lack of integrity”. The claimant has always explained why she did not attend meeting. And the view on integrity has developed as a result of the claimant’s ill-health – caused by absences and the mail exchanges with mentor. The respondent has decided before seeing the evidence that they wanted to give the claimant an unsatisfactory grade, and wanted to make it “strong enough”. No one taken responsibility for negative comments. Chances are caused by negative view of claimant which is because of her absences.

[111]The claimant’s uploaded evidence. No-one looked at it after it was uploaded on 2 December 2014. No evidence that the claimant’s work was not of proper standard; in fact the rest of the report appears to tie personal and professional conduct with ill-health. All of the comments are about absence and unprofessionalism “this document is just a personal attack on the claimant, almost entirely absence related” and there is “no way” these are not related to disability.

[112]Ms Greenfield deals with the report on the basis that it is true, but she knows that the claimant as saying that this is all about absence. Ms Greenfield “failed to engage with this issue, which suggests she did not approach the report with the critical eye that was required, which was this report was made worse because of the claimant’s absence. Could this report be different, given some accommodation for absence? And once the respondents “poison the air with a lack of integrity”, she can’t say it’s tainted as this will be “stacked against her”.

[113]On 18 December the threat of disciplinary measures. Look at later correspondence which adds detail, see 429 ‘ disciplinary ..’. And then Mr Hodges identified a lack of marking and this leads to Ms Greenfield saying disciplinary. “This is not benign”. To be benign would be to make sure the claimant understands our expectation. Instead documentation is got together for a disciplinary case against C. The respondent is “avoiding all of the usual steps to solve this - to assist constructively and instead trying to trigger disciplinary.” When looking at policies in January, they are trying to put together a case against the claimant and this is the case from 19 December onwards.

[114]By 18 December the relationship had broken down, discrimination had occurred, into January more failure. The claimant resigned in response to all of this; it was a discriminatory dismissal.

[115]The evidence is all “massively in the claimant’s favour. The idea that the way that the claimant was treated was no-way because of her disability would be contrary to most of the key documents”. It’s obvious that the respondents took stance they did is because of the claimant’s absences. “It spiralled out of control and was mishandled”. They should have sought OH support to manage situation which they could see was not working. They do not “they blundered on with a punitive stance.”

[116]Mr Burrows had a right of response: the issue of disciplinary – the timeline means there was “consideration of options and what the disciplinary grounds might be – but plan A was to get back in at beginning of next term with action plan.” The documents show that maths marking being discussed within the action plan, this was being addressed with C.

[117]The issue with the claimant’s presentation of the PGCE issues – pages 320- 321 – the issue is that the claimant downplays the effect of illness at the end of her previous teaching placement and puts blame on an earlier unhappy placement – this is the problem with the claimant’s presentation. The issue is not the claimant’s absence due to disability – “it is in essence her inability to raise her game or accept further consequences, that her lack of engagement and communications and professional curtesy was having on her Professional Standards. Conclusions on the evidence and law Direct Discrimination

[118]We considered first, was claimant treated less favourably than a non-disabled person in the same or similar circumstances would have been treated by the respondents? As stated above, we considered that Mr Hodges did ask questions of the claimant about her health and its potential effects on her ability to teach her pupils; these were we found questions he would have asked of any non-disabled NQTs in the same or similar circumstances – i.e. where the NQT had not provided a PGCE assessment, where the NQT had raised medical or other concerns which could have an effect on their teaching practice and where there was an apparent issue not disclosed to them from the PGCE year which could be having a continuing effect on that comparator. We found therefore that comments made to the claimant on 29 September and on/around 3 December about the claimant’s health and her relative performance would have been said to a non-disabled NQT in the same of a similar circumstance.

[119]We also concluded that there was no lack of adequate support to the claimant, in mentoring support or in the preparation of her supporting evidence file. On the claimant’s own case she did not think she did not need assistance, and she uploaded information too late to be properly considered before it was assessed. The claimant was treated no differently than Ms Miller would have treated a hypothetical comparator.

[120]We carefully considered whether Mr Hodges referred to the claimant’s lesson as “poppycock”. We concluded that he was very clear the lesson was failed and why, and we are clear that Mr Hodges was also significantly concerned about other issues in the claimant’s teaching practice including marking. Whatever precise words were said, and we do not consider he used the word poppycock, we concluded that the same words and tone would have been used to a hypothetical NQT in the same position as the claimant.

[121]While we had no direct information on the allegation made in writing of inappropriate language, other than the claimant had received a parental complaint, we again considered that this action would have been taken against a hypothetical NQT with the same or similar record to date against whom a similar allegation was made.

[122]We concluded therefore that in relation to these claims of direct discrimination, the claimant has not shown a difference in treatment, and this claim therefore fails. Direct Discrimination by perception

[123]We noted that the respondents conceded that they had at least implied knowledge that the claimant was disabled by end September 2015. Given the claimant’s discussions with Ms Miller and her providing information on her earlier medical history and potential MS diagnosis, we concluded that the Ms Miller was aware from 16 September 2014. The claimant informed Mr Smith on 29 September, and this was the date we considered that all respondents were aware the claimant was likely to be suffering from a disability.

[124]We asked whether the claimant was treated less favourably by the respondents on the basis they perceived she was disabled with multiple sclerosis or similar condition? Again, in relation to the 29 September 2014 meeting, we concluded that Mr Hodges would have made similar remarks to staff who were not disabled, who he believed may be having similar issues with their NQT year to date and similar issues in their PGCE year.

[125]We concluded that the request for information from the claimant’s PGCE tutor amounted to an act of direct discrimination by the 1st respondent. The reason: we considered that the reason why this request was made was directly related to the claimant’s health, it was said because(i) the claimant’s recent discussions about her health with Ms Miller

(ii) her potential diagnosis of MS;

(iii) Ms Sternstein’s reference to the claimants “ill-health” during the PGCE year. We do not consider that, in a comparable situation, a comparator who had suffered ill health in their PGCE year and who had not provided all paperwork at the start of their NQT as a result, but who had not disclosed the fact of a potential disability and past disability to the respondents, would have been treated the same way. The email would not have been sent to that comparator’s PGCE’s tutor asking for medical information and for this not to be disclosed to the comparator. We concluded therefore that a comparator would not have had such an email sent asking for such health information. In reaching this conclusion, we acknowledged that the respondents view was the the claimant was hiding information from them, and this was their reason for the request for further information. But the respondents had no evidence she was hiding something, just a suspicion, and this suspicion was in any event connected directly to the fact the claimant had disclosed her potential MS diagnosis. We concluded that the reason why this email was sent to Ms Sternstein was because of the claimant’s perceived disability, and this allegation is proven. Discrimination arising from disability

[126]Did the respondent treat the claimant unfavourably because of something arising in consequence of her disability?

[127]We concluded that staff members may have asked questions of the claimant. However, the allegation on 6 November 2017 does not specify which member of staff is alleged to have made a pejorative remark and the claimant has not proven that this remark was made. Accordingly, there was no unfavourable treatment arising in consequence of disability and this allegation fails.

[128]We accepted that on 27 November and on/around 3 December 2014 Mr Hodges did ask questions about the claimant’s absences, what was wrong, whether she was well enough to teach, the lumbar puncture process and that her absences would affect her progress. We also accepted that these remarks in the main arose because of matters arising from her disability – the claimant’s medical appointments and disability-related absences. However we concluded that the questions were, in the context they were raised, a proportionate means of achieving the legitimate aim of ensuring the claimant was complying with her NQT requirements and managing staff absence. Mr Hodges was entitled to ask for information, and while the claimant was uncomfortable with such questions, and the direct manner in which they were asked, we concluded that it was proportionate to ask such questions, given the clear legitimate aim of finding out as much information as required to support NQT teachers and manage sickness absence.

[129]As stated above, we accepted that many of the issue in the term 1 NQT report were legitimately raised – the absences and the claimant’s significant lack of evidence of progress towards standards. We accepted the respondent’s “legitimate aim” as ‘legitimate’. Our concerns centred on the reference to the claimant “lacking in integrity” and the examples given for this. We concluded that this was clearly an unfavourable remark for all the reasons set out above – including a possible future detrimental effect on her career.

[130]We next considered what was the reason for this treatment – with a focus on why this treatment occurred (Pnaiser). We concluded that the reason for this treatment was directly related to the claimant’s disability or perceived disability, and that this was the evidence of Mr Hodges, that one of the reasons for this statement was that the claimant had not been “fully transparent” in saying no health issues previously, “… and she said no health issue, that the training school was at fault…”. We concluded that this showed this statement on integrity arose in consequence of Mr Hodges belief that the claimant’s health condition was more serious than she let on in the application process and at the outset of her employment; his knowledge of her long-standing condition of Guillain-Barre syndrome, the potential diagnosis of MS. We concluded that this statement was made in consequence of her disability.

[131]We next considered whether the respondent’s statement was a proportionate means of achieving its legitimate aim. We concluded not. We noted that the statement and the reasons for making it was not first discussed with the claimant, for all the respondents believed she may have been avoiding some contact with them. But the respondents also failed to properly investigate before whether the claimant did lack integrity, whether its perceptions were justified. We noted that an issue to consider on ‘proportionate means’ is whether an alternative approach could have been taken. We concluded that the respondents could, and should, have properly investigated their concerns before adding such an opinion in the report. We also concluded that the respondent failed to reflect on its actions, in particular its contact with Ms Sternstein, which Mr Hodges now accepts was misguided. The breakdown in relationships was caused or considerably contributed to by this action, and this contributed to the negative report. Making an allegation of lack of integrity was very serious, and we concluded there was no proper consideration of the likely effect on the claimant before doing so, that the proper context of the issues arising had not been properly explored. While there may have been questions to ask about what the issues were at the end of the PGCE year, it was clear from Ms Sternstein’s report that she was supportive of the claimant in a professional capacity, and answered the health questions appropriately. Mr Hodges had not investigated further. We concluded therefore in this context that suggesting the claimant lacked integrity was not a proportionate means of achieving the respondents’ legitimate aims.

[132]We concluded that there was no connection whatsoever between the request to sign an OH form and the letter to the mortgage company. Accordingly, there was no unfavourable treatment arising in consequence of disability and this allegation fails.

[133]We noted that a significant reason why the meeting time was changed with Mr Greaves was at his own request, his usual practice. We also noted that it was his view that the claimant should be given the option of remaining or leaving with a clean NQT. Therefore there is no unfavourable treatment arising in consequence of disability, and this allegation fails. Failure to comply with duty to make reasonable adjustments

[134]We concluded that the respondents did not have a practice whereby it provided insufficient support to the claimant. The claimant was, we found, provided appropriate support on her term 1 evidence file. While Ms Miller did step back as a mentor, at least two other members of staff were available and the claimant did have an informal mentor present at her January NQT meeting. We noted that the claimant did not raise any issue, for example that she was not coping with marking at this meeting, that the claimant appeared to accept (or did not object) to the issues raised by Ms Miller at this meeting.

[135]If we are wrong, and there was such a practice, we concluded that the PCP did not place the claimant at a substantial disadvantage in comparison with persons who are not disabled, by causing or contributing to her failed NQT term 1. The reason – the claimant’s evidence was that she believed her NQT evidence file was of an appropriate standard, she did not seek advice or support as a consequence. Harassment

[136]The claims of harassment fail for the following reasons:

[137]The alleged comments on 29 September, 14 and 21 October, 5, 14, 27 November 2014 and 2 February 2015: We concluded as above that remarks about health were made, and a negative lesson plan result was communicated on 2 February 2015, but the remarks were not always as recalled by the claimant, and that they were in context appropriate remarks, even if unwelcome. Accordingly, on our findings on the remarks that were made, we concluded that there was no intent to harass. We accept that the claimant may have perceived the remarks as harassing, but given our findings on the remarks as made, we did not conclude that it was reasonable for the claimant to so perceive. They were, in context, reasonable questions to ask even if often asked in a somewhat terse manner.

[138]We carefully considered whether Ms Miller’s email to Ms Sternstein amounted to harassment. We concluded not. There was no intent to harass. We accepted that the claimant felt very upset and angry that this request had been made behind her back however we concluded that this act did not have the proscribed effect – it did not “violate her dignity” and it did not create an intimidating, hostile, degrading, humiliating or offensive environment for her. We concluded that this was conduct related to her disability and the claimant was clearly angry and she expressed this anger, but she was told the reason why the information had been sought, and why the respondents considered it appropriate to do so. While it was a clearly misguided thing to do, as acknowledged by Mr Hodges, and it angered the claimant who complained about it, in itself it did not create the statutory level of harm required for ‘harassment’ – it did not violate her dignity or create an adverse environment for her. There were reasons why the respondents contact Ms Sternstein which related to legitimate concerns they had, and the claimant was told this. A cooling in relations between her and Ms Miller did not affect the professional assistance given by, and available from, Ms Miller.

[139]We carefully considered whether the NQT report reference to “lacking in integrity” amounted to an act of harassment. We concluded not. The respondents had concerns, and these concerns related to the claimant’s practice in term 1 and whether these could be related to the PGCE issues, whether the claimant had been honest in her approach. There were the issues with reporting absence and attending meetings. We concluded that the respondent failed to raise these concerns with the claimant in an appropriate way, but we concluded that they were concerns which would have been raised with the claimant in any event sooner or later. Some of the issues arising were raised in a disciplinary letter. Ms Greenfield did not consider the remark should not be made in the NQT report. We concluded that whenever this issue was put to the claimant it would have caused significant concern and anger but that in context it was not reasonable for the statement to amount to harassment – if not any concern of an employer about conduct made outside of a disciplinary process could in theory amount to harassment. Victimisation

[140]We concluded that the claimant made a protected act when she made allegations which were passed to Ms Greenfield on 18 December 2014. Any act made before this date the respondents were unaware of. Only three acts of alleged victimisation fall after this protected act, that she was alienated from colleagues, the lesson observation of 2 February 2015 and the allegations on 14 February 2015. We concluded that the latter two were clearly detrimental to the claimant, but that they did not occur because of the claimant’s grievance. We concluded that there was no evidence she was alienated from colleagues. We concluded that the lesson observation was an accurate, if blunt, assessment of the lesson given by Mr Hodges in the knowledge that there were significant other issues with her practice which were going to be formally raised with her. We concluded that this was not because of the claimant’s grievances, but because of his genuine concerns about the claimant’s ongoing failure to meet Teacher Standards; similarly with the disciplinary allegations. Claims against respondents 2 and 3

[141]We concluded that the case as put was put against the school, respondent 1, that the claim was essentially one of vicarious liability for the acts of respondents 2 and 3. It was not suggested that respondent 1 could not be liable for the acts of another respondent. We did not consider that it was seriously put respondents 2 and 3 should be held individually liable for the acts of discrimination alleged. We concluded that the acts of respondents 2 and 3, whilst acknowledged in part to be misguided, and we found to be discriminatory, were anything other than attempts to address a complex situation with a NQT teacher. We considered that the main failing by individuals was not obtaining HR advice in time, while also noting there was a real desire to keep things as informal as possible as this was felt to be the best way to produce as successful outcome. Accordingly, we did not find respondents 2 and 3 liable for the acts of discrimination as found.

[142]In summary:140.1 The emailing of Ms Sternstein seeking information about the claimant’s ill-health amounts to an act of unlawful direct discrimination by the first respondent.

140.2 The comment that the claimant was “lacking in integrity” amounts to an act of discrimination arising from disability by the first respondent.

140.3 All other claims fail and are dismissed.

Remedy

[143]The parties are asked to write to the Tribunal within 14 days providing their dates of availability for a one hour telephone Preliminary (Case Management) Hearing. It would be preferable if this hearing could take place in January or February 2021.

Remedy

[1]The application for reconsideration requests a judgment from the Tribunal on the following Issue: does C’s termination amount to an act of discrimination?

[2]The Tribunal considers that this issue is not one that can properly be addressed on reconsideration, for two principal reasons –(i) the issue was not adequately addressed at liability stage;

(ii) the issue on which C seeks judgment can in fact more properly be dealt with as an issue of causation, to be addressed at remedy stage The issue was not adequately addressed at liability stage

[3]The issue was, at best, opaquely dealt with, in the list of issues, in evidence and in closing submissions. There is no reference to dismissal being an act of discrimination in the Issues considered comprehensively in the preliminary Hearing Order dated 31 January 2018 (pages 65-80). As the Reconsideration Request points out, this issue was added late to the list of issues.

[4]It is recorded in the list of issues within the ‘victimisation’ section– page 96 paragraph 14: “The claimant contends that she was subjected to victimisation as a result of undertaking protected acts. The claimant seeks to rely on the following as protected acts… “(e) On [11] February 2015 I received an email … the spurious allegations were not only baffling but I was shocked and appalled at the mere claim … I was then informed that unless I tendered my resignation, a formal investigation would be launched… it was clear that these accusations came after I complained about the situation at Cleves and the discrimination I continued to face. This final ultimatum [to attend an investigation hearing], and the discrimination that I had faced prior to this, amounts to automatic unfair dismissal”.

[5]In other words an allegation that the claimant’s dismissal is a discriminatory dismissal is ‘buried’ in the ‘protected acts’ section, one sentence in a 1.5 page recitation of protected acts/detriments, in a 13 page draft list of issues. It suggests that the email constituted the final straw, however in a detailed reconsideration of the liability evidence and submissions undertaken for the purposes of this review, this does not appear to have been addressed by the parties as an issue in evidence.

[6]The Tribunal’s notes record a passing reference in submissions by the claimant’s representative to the issue of repudiatory breach, which we concluded was an argument based on all alleged acts of discrimination being proven. Whereas, we concluded for example that the performance concerns raised and the manner of their raising did not amount to acts of discrimination.

[7]Also, there were no submissions on, for example, the effect of some of the issues raised in the claimant’s letter seeking release from her contract and her letter of resignation, amounting to discrimination, and some not. Again, this did not suggest that the claimant was pursuing a claim of a discriminatory dismissal. This is not to criticise the parties; there cannot be submissions on the legal effect of partial findings in each parties’ favour, because these would not be known until the judgment was reached.

[8]In summary, this was not an issue which was in any way highlighted as a separate issue prior to or during the claim, submissions were in passing and did not address the issue of some but not all acts amounting to discrimination.

[9]We did not feel that it was in the interests of justice to invite further submissions, which we considered would require a further hearing. In making this decision, we also took into account the 2nd reason for rejecting the request for consideration, set out below. Not a liability issue

[10]We consider that the question that is being asked by the claimant is in fact one which is more properly addressed at remedy stage, that this is in fact an issue of causation: what was the cause of the claimant’s losses and damage. We consider this to be a remedy issue.

[11]A significant reason for this conclusion was the following: even if we had received evidence and submissions on the issue, and we had concluded that the claimant’s resignation amounted to a repudiatory breach of contract, the issue of causation for loss would still be a live issue. We considered that even if we were to answer this question in the favour of the claimant, it would not advance the issue of causation for the claimant’s losses any further, as the respondent would still, no doubt, argue that the non-discriminatory issues would be a significant factor in causation for loss.

[12]One of the issues to be considered at remedy will, we consider, properly address the issue. While still to be formulated, a first draft is:a. What was the material and effective cause of the claimant’s loss of earnings?

b. Was the unlawful discrimination she suffered at work a material and effective cause of her resignation, as alleged by C, or

c. Did other factors, including those acts found not to amount to discrimination, cause or contribute to her resignation, and if so to what extent up to 100%, as alleged by R?

d. Would the claimant have been dismissed fairly/for a non-discriminatory reason in any event, if so when?

[13]Issues to be considered at remedy will include the correspondence between the parties, including the reasons the claimant gave for first asking to be released from her contract on 11 February 2015 (497-500), and in her resignation letters dated 13 and 18 March 2015 (514-5 & 519).

[14]For the above two reasons: it was not in the interests of justice to revisit an issue on which there was no evidence or submissions and was opaquely expressed in the list of issues; and our findings of fact give rise to complex issues of causation which are properly addressed as issues of remedy not liability; the request for consideration is refused.

[15]Finally, I would like to offer my sincere apologies to the parties and their representatives for the significant delay in responding to the request for reconsideration. There were initial difficulties in my getting papers in early 2021, but the significant delay was caused by issues which meant that I was unable to work for large periods throughout 2021. This has caused significant knock-on delays, which I am now significantly addressing.