Dr TurtonClaimantMid Kent CollegeRespondentDate 3 February 2025
JUDGMENT
[1]The following complaints of harassment related to disability are WELLFOUNDED and succeed:1.1 In December 2021 Ms Woodman (another lecturer) would mock the Claimant’s disabilities by tapping her head to indicate that the Claimant had ‘mental problems’ (issue 6.1.6 (3.2.1)).1.2 Ms Woodman spread fabricated information about the Claimant in respect of false racist remarks which led to a student complaining and rumours circulating (issue 6.1.1 and 6.1.6 (3.2.3)?1.3 On 21 April 2022 at around 4.45pm when the Claimant returned her chair to the staffroom she was shouted at by Ms Woodman and Ms Peet who tried to force her to communicate with them (issue 6.1.4)[2]The remaining complaints of harassment related to disability are NOT WELL-FOUNDED and are dismissed.[3]The following complaints of direct disability discrimination are WELLFOUNDED and succeed:3.1 The Respondent subjected the Claimant to a redundancy procedure (issue 3.2.7).3.2 The Claimant was dismissed by way of voluntary redundancy (issue 3.2.8).[4]The remaining complaints of direct disability discrimination are NOT WELL-FOUNDED and are dismissed.[5]The complaint of failure to make reasonable adjustments for disability is WELL-FOUNDED and succeeds.[6]The complaint of discrimination arising from disability is NOT WELLFOUNDED and is dismissed.
REASONS
[2]Dr Turton (the Claimant) was employed by the Respondent, a further education college, as a Psychology Lecturer, from 26 August 2014 until 31 August 2022 when she took voluntary redundancy. Dr Turton has Asperger’s Syndrome (Autism Spectrum Disorder), Severe Complex Post Traumatic Stress Disorder and ADHD. The claim is about disability discrimination that Dr Turton says she suffered between September 2021 and her resignation on 31 August 2022.
THE HEARING
[3]The hearing took place over 10 days. Days 1 – 7 were a hybrid hearing with the parties’ representatives attending in person, Dr Turton and her witnesses attending by CVP, the Respondent’s witnesses attending in person. Day 8 (submissions) was wholly by CVP; Days 9-10 were panel deliberations.[4]Both parties were represented by counsel. They are thanked for their assistance, cooperation and representation during the hearing.
RELEVANT LAW
[5]It was agreed at the outset of the hearing that as a reasonable adjustment Dr Turton be accompanied by a member of her family to provide welfare support. In addition we took into account the information about Dr Turton in the ADHD Diagnosis Report: pg 226-237 (in particular pages 232-236). Further reasonable adjustments in the form of accommodating a notetaker and providing assistance with numbers and dates were made for Mr Horan.[6]During the hearing we were provided with the following documents:6.1 A joint agreed hearing bundle of 1659 pages, the references to page numbers in this Judgment are to the pages in this bundle.6.2 A joint agreed supplementary bundle of 498 pages, this is referred to in the Judgment as SB followed by page number. This was provided on Day 3.6.3 A preliminary hearing bundle for the strike out application, entitled ‘Claimant’s Bundle re Conduct’ of 45 pages, this is referred to in the Judgment as PB followed by page number.6.4 A witness statement bundle.6.5 A revised witness statement from Ms Ockleford, provided on Day 7, this was admitted in addition to the previous one.6.6 A chronology and cast list provided by the Respondent.6.7 Transcripts of the following recordings (provided on Day 6 by the Respondent):6.7.1 Audio recording 1 – meeting between Dr Turton and Mr Coyle (audio 1);6.7.2 Audio recording 2 – meeting between Dr Turton, HR and unknown female (audio 2);6.7.3 Audio recording 3 – meeting between Dr Turton and unknown male (audio 3);6.7.4 Student A recording - 21 September 2021 (Student A audio 1);6.7.5 Student A recording - 5 October 2021 (Student A audio 2);6.7.6 Student A recording - 2 November 2021 (Student A audio 3);6.7.7 Student A recording - 9 November 2021 (2 parts) (Student A audio 4);6.7.8 Student A recording - 4 January 2022 (Student A audio 5); and6.7.9 Student A recording - 25 January 2022 (Student A audio 6). NB: Dr Turton provided extracts from the audios in an Appendix to her witness statement, and this was taken into account where the transcript provided by the Respondent was incomplete.6.8 3 audio recordings: audio 1, student A audio 1, student A audio 6 (which was of poor quality). Selected sections were played during the hearing.6.9 Respondent’s written submissions on strike out; Respondent’s written submissions on liability and the Respondent’s written closing submissions.[7]There was a delay in the start of the hearing on Day 1. The Tribunal had offered for Dr Turton and her witnesses to attend its hearing center at Ashford, however a room had not been booked. As it turned out Dr Turton was able to attend by CVP from her home. It was agreed that her witnesses could attend her home to give evidence as long as she remained in view on the screen by sitting behind them and did not interfere with their evidence.[8]Once the logistics had been resolved the rest of the first day was spent dealing with the Claimant’s strike out application (see below). The Tribunal then took Days 2 and 3 to read into the case whilst the parties re-organised the bundles and statements. On Days 4 and 5, Dr Turton gave evidence on her own behalf, and called Ms Bateman as a witness. Mrs Turton (Dr Turton’s mother) was not called since her statement dealt with remedy issues. On Days 6 and 7 the Respondent called the following witnesses: Ms Woodman, Mr Coyle, Mr Hyland and Ms Ockleford.[9]Unfortunately there were two bereavements during the hearing, which we were able to accommodate by timetabling the evidence and moving to CVP.[10]On completion of the evidence the Respondent provided helpful written submissions on the law (which was agreed by the parties) and written submissions on the facts, supplemented by oral submissions. The Claimant provided oral submissions. The Panel adjourned to deliberate. Judgment was reserved. THE CLAIMANT’S STRIKE OUT APPLICATION[11]At the commencement of the hearing there was no agreed hearing bundle. The Claimant had served a bundle of 1659 pages and the Respondent had served a bundle of 2086 pages. The Respondent’s bundle was supposed to be an agreed bundle but it had only been served on 18 October 2024 (the last working day before the hearing). This was the reason why Claimant had served her own bundle on 16 October 2024. The Claimant’s witness statements were served on 17 October 2024 and the Respondent’s on 18 October 2024. Neither party were ready to proceed with the hearing on Day 1.[12]On 25 September 2024 the Claimant had applied to the Tribunal to strike out the Respondent’s Response under rule 37 of the ET Rules on the grounds that the claim ‘had not actively pursued’ and / or ‘for non-compliance …. with an Order of the Tribunal’. On 7 October 2024 EJ Siddall had Ordered that the application be heard at the start of this hearing.[13]In support of the application to strike out the Claimant provided the cases of: Governing Body of Saint Albans Girls’ School v Neary [2010] IRLR 124; Office Equipment Systems Limited v Hughes [2019] IRLR 748; Daleside Nursing Home Limited v Mathew (UKEAT/0519/08). In oral submissions the Claimant took us though the correspondence between the parties: pgs 1-105 and PB 1-45 , The Claimant argued that the fault lay solely with the Respondent and that due to the vulnerability of the Claimant a fair hearing was ‘near impossible’.[14]The Respondent provided written submissions and the case of Weir Values & Controls (UK) Ltd v Armitage [2004] ICR 371. In oral submissions the Respondent conceded that orders of the tribunal had not been complied with but asserted that the fault lay equally with both parties. The Respondent denied they had not actively pursued the claim.[15]In addition to the cases provided by the parties’ representatives the Tribunal drew the parties attention to the following cases: Harris v Academies Enterprise Trust (UKEAT/97/14) and Emuemukoro v Croma Vigilant (Scotland) Ltd [2022] ICR 327.[16]Before adjourning to deliberate the Tribunal asked the parties to address it on the hearing timetable. The original listing of 8 days had been on the basis that the hearing was to determine liability and remedy and there would be 13 witnesses. There were now only 8 witnesses and the hearing could be converted to liability only. Both parties confirmed that if the hearing were to start on Day 4, we could complete the evidence and submissions and commence deliberations within the 5 days left, with Judgment being reserved. The Tribunal’s Decision on the Claimant’s Strike Out Application[17]ET Rule 37 involves a two-stage test:(1) whether the specific ground is established on the facts, and(2) even if a ground is established, whether the Tribunal should use its discretion to strike out having regard to the overriding objective: rule 2. We noted that our power to strike out a case or response should only be used as a last resort. Not actively pursued (rule 37(d)):[18]We accepted the Respondent’s submissions that the correct test to apply is set out in the case of Evans and Anor v Commissioner of Police of the Metropolis [193] ICR 151 (CA), namely that a tribunal can strike out a claim where:18.1 there has been delayed that is intentional or contumelious (disrespectful or abusive to the court), or18.2 there has been inordinate and inexcusable delay, which gives rise to a substantial risk that a fair hearing is impossible, or which is likely to cause serious prejudice to the Respondent [or Claimant].[19]We did not consider the delay by the Respondent was either intentional or contumelious. There was sufficient evidence in the inter-parties correspondence of the Respondent engaging in the tribunal process and the Claimant’s solicitors. Whilst we considered the Respondent’s solicitor was primarily responsible for the delay, the Claimant solicitor also bore some responsibility, for the reasons set out below. Whilst we did consider that the delay by the Respondent following the 25 September 2024 application was inexcusable we did not consider that there was a substantial risk that a fair hearing was impossible (for the reasons set out below). Therefore we concluded that this was not a case where the Response should be struck out on the grounds that it had not been actively pursued. Breach of Tribunal Orders (rule 37(c)):[20]In the Case Management Order of 18 April 2023 (CMO) the Tribunal had ordered that: (pg 56):20.1 the parties to agree a hearing bundle by 26 October 2023 (paragraph 25);20.2 the Respondent to send to the Claimant the agreed hearing bundle by 31 October 2023 (paragraph 28);20.3 the parties to exchange witness statements by 1 December 2023 (paragraph 35);20.4 the Respondent to provide the Tribunal with electronic copies of the hearing bundle and witness statements by 14 October 2024 (paragraph 38);20.5 the parties to inform the tribunal that they were ready by 30 September 2024 (paragraph 39); and20.6 the date of any Order could be varied by consent by 28 days without the Tribunal’s permission (paragraph 45).[21]We accepted the Respondent’s submission that the leading case on noncompliance with tribunal orders was the EAT case of Weir Values and not Neary. This was because Neary was concerned with the test to be applied to an application for a review of a decision to strike out ‘in the interests of justice’ under what was then rule 34 (a predecessor to rule 70 on reconsideration) whereas Weir Values specifically addressed the test to be applied where there had been non-compliance with an tribunal Order. In Weir Values the EAT held at paragraphs 16-17 that (even where there has been willful disobedience to an order) ‘it does not follow that a striking-out or other sanction should always be the result of disobedience to an order. The guiding consideration is the overriding objective. This requires justice to be done between the parties. The court should consider all the circumstances’.[22]We took into account that the EAT in Harris v Academies Enterprise Trust (UKEAT/97/14) reinforced the importance of complying with tribunal orders.[23]With reference to the Weir Values factors:23.1 The magnitude of the non-compliance: We accepted that the Respondent was largely responsible for the delays in the hearing preparation prior to September 2024. They repeatedly requested extensions to deadlines for further disclosure, production of the hearing bundle and exchange of witness statements: pg 82-103. This went beyond the 28 days permitted by the CMO and caused the timetable to slip. However the Claimant’s former solicitors also bear some (albeit less) responsibility in that they had failed to inform the Tribunal at an earlier stage about the Respondent’s non compliance and apply for appropriate orders to ensure that this matter was ready for hearing. Further, on changing solicitors on 20 September 2024 the Respondent was not informed of this and only becoming aware at point that the Claimant made the strike out application.23.2 In relation to the Respondent’s non-compliance following the Claimant’s strike out application on 25 September 2024, we accepted that the Respondent had been taken by surprise because it had been in settlement negotiations with the Claimant’s former solicitor: pg PB 2. However, this was no excuse since the Respondent should have continued to prepare for the hearing in tandem with the settlement negotiations. Further following receipt of the Claimant’s application, the Respondent was then on notice that the case was not settling and they should have then taken urgent steps to get the case ready for the hearing. For three weeks the Respondent made no attempt to make contact with the Claimant’s new solicitors with proposals as to how the parties should prepare for the hearing (see email dated 16 October 2024: pg PB 8-9). The lack of urgency was even more concerning following receipt of EJ Siddall’s letter of 7 October 2024 refusing the Claimant’s application for a postponement: pg 75. At that point it should have been clear to the Respondent that the hearing was proceeding and there was still 14 days to get the matter ready. The failure to take any urgent steps until the last week before the hearing was of significant magnitude since it resulted in the parties not being ready to proceed with the hearing on Day 1.23.3 The Respondent submitted that it sent the hearing bundle to the Claimant on 13 October 2024. This was denied by the Claimant and the Respondent did not provide any evidence of this. Further Mr SolaOgunniyi of DAS Law did not mention that he had already sent a hearing bundle when he emailed the Claimant on 16 October 2024 regarding her hearing bundle: pg PB 7. Therefore we do not find that the Respondent had submitted a bundle prior to the last working day before this hearing.23.4 We accepted that the Respondent did not receive a number of the Claimant’s emails in the week leading up to the hearing including the ones attaching the hearing bundle and witness statements send on 16 October and 17 October 2024 respectively. This was because they were blocked by Minecast (the Respondent’s computer security system). However, we were surprised that the Respondent did not do more to check why it was not receiving any response from the Claimant to its emails, given the proximity to the hearing, such as phoning the Claimant. On 18 October 2024 the Claimant’s solicitors phoned the Respondent, following which the Respondent checked its computer system and found the blocked emails.23.5 Whether the default was the responsibility of the party or his or her representative: We considered that the responsibility for the failure was the Respondent’s solicitors, not the college or its witnesses.23.6 What disruption, unfairness or prejudice has been caused; We considered this carefully. Clearly it did have an impact on the Claimant in that we were unable to start the hearing on the first day and could have had a further impact on her if the hearing had to be postponed to another date. We have been provided with no medical evidence to suggest that she would not be able to manage a postponement and we noted that her representative had applied for a postponement on 25 September 2024. This suggested that she would be able to cope with a postponement if one was required.23.7 We considered that there would be prejudice to both parties if we proceeded without providing them with the opportunity to properly prepare. However this could be addressed by a delayed start or postponement. We did not otherwise consider that the Claimant would be prejudiced since we could accept her bundle as the main hearing bundle, and require the Respondent to produce a separate bundle of any additional documents and redo the page references in their statements. We considered that the fact that some of the Respondent’s statements were poorly drafted and did not address the issues in the case was likely to be more of a disadvantage to the Respondent than the Claimant.23.8 Whether a fair hearing would still be possible: We took into account the guidance of the EAT in Emuemukoro v Croma Vigilant (Scotland) Ltd [2022] ICR 327. This was that where an application to strike out is considered on the first day of trial, a highly relevant consideration is whether a fair trial is possible within that trial window. We considered that the trial window allowed us sufficient time to delay the start to Day 4 and then complete the evidence and submissions by the end of Day 8 at the latest. In fact having made inquiries the Tribunal were able to add a further 2 days to the end of the hearing for deliberations.23.9 Whether striking out or some lesser remedy would be an appropriate response to the disobedience. We referred to ET Rule 6. We considered that striking out the Response or barring the Respondent from participating in proceedings was too draconian. Further it was still possible to have a fair hearing, and that any disobedience could be addressed by the sanction of costs, to be considered at a later date.[24]There followed a brief adjournment to enable the parties to take instructions. Both parties confirmed their preference to use the current hearing window. Restricted Reporting Order[25]The Claimant by email dated 1 November 2024 applied for the names of any students referred to in this Judgment to be anonymised. The Respondent has not objected to this application. It was a matter that the Tribunal had raised with the parties during the hearing and case management orders were made at the end of the hearing to enable the parties to take instructions.[26]Rule 50 of the ET Rules (‘Privacy and restrictions on disclosure’) provides that: ‘(1) A Tribunal may at any stage of the proceedings, on its own initiative or on application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person or in the circumstances identified in section 10A of the Employment Tribunals Act. (2) In considering whether to make an order under this rule, the Tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression. (3) Such orders may include— ….. (b) an order that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the Register or otherwise forming part of the public record; (5) Where an order is made under paragraph (3)(d) above—(a) it shall specify the person whose identity is protected; and may specify particular matters of which publication is prohibited as likely to lead to that person’s identification;(b) it shall specify the duration of the order; …..’[27]Rule 50 is a derogation from the fundamental principle of open justice and the general rule is that hearings and judgments are public: see for example Clifford v Millicom Service [2023] EWCA Civ 50. It therefore should only be made in exceptional circumstances and should be limited to what is strictly necessary. Where it is proposed that the order be made in relation to a person who is not a party or a witness to proceedings, this is a relevant factor to take into account: TYU v ILA Spa Ltd [2022] ICR 287.[28]We considered that publication of the students’ identities would interfere with their Article 8 (the right to private and family life) Convention rights. In deciding to make an anonymity order we considered that it was a highly relevant factor that the students were not a party or a witness to these proceedings. Open justice would not be compromised if their identities were not made public. The derogation was limited to what was strictly necessary: namely anonymising their identities in the published judgment. CLAIMS / ISSUES[29]It was agreed with the parties that this hearing be converted into a liability hearing only. This was because remedy included a claim for personal injury involving matters of causation and prognosis potentially requiring expert evidence. It also assisted with managing the hearing timetable for the reasons set out above.[30]The List of Issues was as set out in the CMO of the 18 April 2023 (pgs 63-68), with the following amendments:30.1 The removal of the claim for indirect discrimination (issue 4).30.2 The removal of the first PCP and the third step in the claim for reasonable adjustments (issues 5.1.1 and 5.4.3).30.3 The removal of duplicate unfavourable treatments from the claim for discrimination arising out of disability (issues 7.1.3 and 7.1.4 ). The List of Issues is reproduced in Appendix A. FINDINGS OF FACTS[31]We have only made findings of fact in relation to those matters relevant to the issues to be determined. Where there were facts in dispute we have made findings on the balance of probabilities. We confirm that we have taken into account all the documentation and evidence that we were referred to by the parties. If something is not specifically mentioned that does not mean that we have not considered it as part of our deliberations. About the Respondent[32]The Respondent is a further education college with campuses in Maidstone and Medway. It had an Access Team, teaching adult students on the Access course for entry to university. Prior to September 2021 it comprised 3 full time lecturers and Mr Coyle (Curriculum Manager). The lecturers were: Dr Turton, a specialist psychology lecturer, Ms Bateman a specialist biology lecturer and Ms Peet a general lecturer. Mr Coyle’s line manger was Mr Cotton (Head of Department) and his line manager was Ms Le Poidevin (Director of Curriculum).[33]The Respondent had an HR department which included Ms Ockleford (HR Business Partner) and Mr Herring (Deputy Director of People) and Ms Thompson (Director of People). Policies and procedures[34]The Respondent had the following relevant policies:34.1 Social Media Policy (December 2019): pg 361. This identified ‘inappropriate conduct’ as including: engaging in activities that have the potential to bring the college into disrepute, commenting on any workrelated matters and actively or persistently pursuing relationship with students or ex students.34.2 Support and Guidance for Non-visible Disabilities (undated): pg 1639. This included a section on autism (including Asperger syndrome) which identified symptoms, described how an employee with this condition may be perceived by colleagues and advised on the need to adjust communication and manage social interactions. About Dr Turton[35]On 26 August 2014 Dr Turton commenced employment with the Respondent as a specialist psychology lecturer. At the time of these events she also worked as an external examiner for another employer.[36]Dr Turton has Asperger’s Syndrome (Autism Spectrum Disorder (ASD)), Severe Complex Post Traumatic Stress Disorder and ADHD (referred to as hidden disabilities). We find that at the time of these events, Dr Turton was open about her mental health and hidden disabilities to staff and students. She informed students at their induction course at the beginning of the academic year (September 2021) that if they had a difficulty with any of her lectures they should approach her first rather than any other member of staff so that she could resolve the issue before escalating it. Chronology of events from September 2021[37]In September 2021 Ms Woodman joined the Access Team as a general lecturer to cope with increases in student numbers. Ms Woodman had a number of difficult social interactions with Dr Turton during the 2021 autumn term and raised her concerns with Mr Coyle and colleagues to be told ‘this was what Dr Turton was like’. She denied that she was aware of Dr Turton’s hidden disabilities. We considered her evidence as to when she became aware of Dr Turton’s disabilities to be vague and evasive: she admitted that Dr Turton had referred to her autism in team meetings which she attended by video but did not recall when. Given that Dr Turton was open about her hidden disabilities with students from the beginning of the academic year we find it not credible that Ms Woodman would not have known during the autumn term.[38]Between September and December 2021 Mr Coyle had a number of conversations with his team including Ms Woodman and Ms Peet about Dr Turton’s social interactions. He could not recall whether or not he informed them of Dr Turton’s hidden disabilities in particular ASD. We find that it was more likely than not that he did since it would have been difficult to have had these conversations with her colleagues without reference to this disability.[39]We were provided with transcripts of some of the classes that Ms Woodman took during the autumn term, during which she made a number of critical references about Dr Turton to students. These included:39.1 On 21 September 2021, Ms Woodman said during a discussion with students about Dr Turton’s approach: ‘….I’m not. casting any professional aspersions at all, but I’m very aware of how she delivers. And you’re online aren’t you… I’m not a Psychologist, as you probably are aware, but I can’t see how you can do it not face-to-face’: Student A audio 1.39.2 On 5 October 2021, Ms Woodman said to students in relation to a study skills brief written by Dr Turton that: it ‘really doesn’t do anything to help you’ and later ‘to my mind it seems a bit silly, and ‘it just doesn’t add up’: Student A audio 2.39.3 On 2 November 2021 in response to a question from a student about a member of staff not answering emails Ms Woodman responded ‘Right, this stays between us’ and goes on to refer to the unidentified female lecturer failing students if they do not meet the grades. Ms Woodman then says ‘It’s very wrong, its completely wrong, but that is what happens. So she won’t answer’: Student A audio 3. The Respondent put in cross examination that this was not about Dr Turton. We find that it is. ‘Sharon’ (Dr Turton) is referred to by name, in response to a student's question about complaining to Mr Coyle about the grades. Further students A and B referred to this incident in their conversation with Mr Coyle on 4 January 2022, as an example of Ms Woodman being negative about Dr Turton.39.4 On 9 November 2021, Ms Woodman was going through a brief and power point relating to the student skills assignment created by Dr Turton. A student asked why they were having to do work that Dr Turton had set when it was a lesson being taught by Ms Woodman. Ms Woodman explained why and then in response to a further question replied that she found the process ‘really frustrating… I hate to make you aware of those frustrations. But then, why shouldn't you know? Because it's your course and it makes me so cross….. But it just doesn't do, it just doesn't do for me at all, it really doesn't. And then of course then there's the personalities involved’. We find that this was a reference to Dr Turton since this is the context within which these comments were being made and that the students would have been aware who Ms Woodman was referring to: Student A audio 4. The audios were provided to Dr Turton by student A who taped their classes to assist in their learning. Whilst Dr Turton was only provided with the relevant sections of the recordings by student A, we accepted that what they did record was an accurate representation of what was said. There was no evidence to suggest that the tapes had been edited.[40]Dr Turton has alleged that sometime during the autumn term Ms Woodman did the following:40.1 Informed her students that she had been hired because Dr Turton was not able to cope with her workload because of her disabilities (issue 3.2.5 and 6.1.6).40.2 Tap her head to indicate that Dr Turton had ‘mental health problems’ (issue 3.2.1 and 6.1.6).40.3 Discuss Dr Turton’s disabilities with students and told them that she had a ‘mental health’ problem (issue 6.1.3 and 6.1.6).40.4 Told students that Dr Turton was greedy and wanted to keep all psychology teaching to herself (issue 6.1.2 and 6.1.6). Dr Turton in evidence accepted that these comments were not something that she had personally heard or witnessed but that she had been told of by student A and student B.[41]We do not find that the comments set out in paragraphs 40.1, 40.3 or 40.4 were made for the following reasons:41.1 There is no audio record of Ms Woodman making these comments.41.2 The two students who complained to Mr Coyle, with the exception of the head tapping, did not refer to any specific comment made by Ms Woodman about Dr Turton in relation to her disability (see below).41.3 Dr Turton in her email of the 27 December 2021 does not refer to these comments (see below). The comments were denied by Ms Woodman. In the absence of any direct evidence that these specific comments were made, we do not find on the balance of probabilities that they were.[42]However we do find that Ms Woodman tapped her head on three or four occasions when referring to Dr Turton (issue 3.2.1 and 6.1.6). This finding is supported by what the students themselves reported to Mr Coyle on 4 January 2022, that Ms Woodman would refer to Dr Turton not remembering and tap her head. Whilst we noted that this was hearsay since student A had not attended this hearing to give evidence, her account is supported by the audio recording of 2 November 2021 where Ms Woodman can be heard saying ‘That’s alright, she won’t remember. [Group laughter]’: Student A audio 3. Whilst the gesture itself cannot be seen on the audio recording, we concluded that it did occur based not just on the hearsay evidence of student A but also inferences drawn from the following evidence that this is something that Ms Woodman would do:42.1 Dr Turton’s stated that she had heard Ms Woodman comment on a student’s mental health saying, ‘we all know what she is like’ and saw her lift her finger to her ear and make a ‘twirly’ sign. Dr Turton explained that she did not report this at the time because she was in shock and did not know what to do since she was the only person who saw it.42.2 Ms Bateman’s stated that she had heard Ms Peet make comments about students when requesting extension to deadlines for mental health reasons, saying ‘we've all got mental health problems’ and that Ms Woodman was present and nodding. The Respondent submitted that Ms Bateman was not a reliable witness because she had left the Respondent on bad terms and this had distorted her recollection of events. We did not find any evidence to suggest that her recollection was affected by the manner of her departure. Her evidence was clear and unexaggerated and she readily conceded points adverse to Dr Turton’s case.[43]On 20 December 2021 Dr Turton was informed by student A that Ms Woodman had been making fun of Dr Turton’s disability in classes and she advised that they speak to Mr Coyle. Following this meeting Dr Turton sent an email to Mr Cotton informing him that a student had spoken to her and that the student had recordings of what Ms Woodman had apparently said. She stated that Ms Woodman had been ‘saying some very awful things about me’ and making fun of her disability: pg 605.[44]On 4 January 2021 Mr Coyle emailed Dr Turton to inform her that her workbook for unit 3 ‘looks good’ it had been checked against the Laser documentation (the awarding body) and only one sentence required rephrasing, otherwise it was ‘good to go’: pgs 742-743 (issue 3.2.6 and 6.1.6).[45]The same day student A and student B spoke to Mr Coyle. This meeting was recorded by student A: Student A audio 5. The student started the meeting saying ‘its [Ms Woodman]…. I’m really struggling – really struggling actually – with how she’s talking about Sharon and her [pause] disabilities and i.. [sighs] – its really difficult I’ve got children that are autistic and I’m really struggling with it’. They referred to Ms Woodman making general negative comments about Dr Turton and closing the classroom door saying that she did not want anyone to hear. When asked by Mr Coyle to provide examples of what Ms Woodman had said about Dr Turton’s disability student A referred to having recorded some of her lessons and that she could go through the recordings to see if any of the comments are on there. She later said that the comments were all ‘insinuation’ rather than direct but again offered to go through her recordings. On being again prompted by Mr Coyle she referred to Ms Woodman tapping her head and saying, ‘she'll forget anyway’ and that this has been done 3 or 4 times. Later on Mr Coyle returned to the head tapping incident and the student confirmed that there was nothing else specific referring to Dr Turton’s disability but again offered to go through her recordings. She however said that the head tapping was ‘mocking’ Dr Turton’s disability and that was where she really struggled with Ms Woodman.[46]On 5 January 2022, Dan Cotton emailed Dr Turton stating that Mr Coyle had reported back to him and Ms Le Poidevin and that ‘the particular point on evidence was different from my expectation of what the student would provide’. He went on to state that the student’s version of events was open to interpretation, and suggested that Ms Woodman’s conduct may be ‘unintentional’, that it was nevertheless ‘unnecessary’ and that there would be management intervention: pg 603 (issue 3.2.2). There was no further investigation. Dr Turton stated that at the time she assumed the students had changed their mind (she only received the audio of what had been discussed from the student A at a later date): Student A audio 5.[47]On 20 January 2022 student C emailed Ms Peet to complained about Dr Turton: pgs 630-633 (653-654). She alleged that she had been told that ‘Sharon Turton does not like you because of your family background and that all Gypsies should not be allowed to have an education’ (issue 3.2.3, 6.1.1 and 6.1.6). It was not disputed that this allegation was false. In the same e-mail student C alleged that Dr Turton had deleted her work, made rude and unhelpful comments and made comments about her niece during one of her zoom lessons.[48]The same day Mr Cotton emailed Ms Ockleford and Ms Le Poidevin, copied to Mr Coyle, requesting a meeting ‘to discuss Sharon Turton and her continued unreasonable behaviour’ providing an example of Dr Turton’s unreasonable behaviour during a mock Ofsted inspection for which she then apologised: pg 618. He then referred to Dr Turton making accusations of being bullied but then refusing to meet with him. He stated that Dr Turton had informed Mr Coyle that she could not work on site because of Ms Woodman and that it had caused her a three hour panic attack. He commented that he had sat in the same office from lunchtime and not seeing any signs of someone being upset or having a panic attack and queried why Dr Turton had not approached him.
CONCLUSION
[49]On 25 January 2022 student C submitted a formal complaint repeating her complaints about Dr Turton: pgs 669-670. She identified Ms Woodman as the person who had told her that her work had been deleted and that Dr Turton had made the comment about ‘gypsies’. This is also what student C told her friend the same day: Student A audio 6. This complaint resulted in Dr Turton being subjected to a formal investigation.[50]The same day Dr Turton informed Mr Coyle that she wished to take a grievance out against Ms Woodman about what Ms Woodman had said to student C: pg 957.[51]On 28 January 2022 Dr Turton emailed Ms Ockleford regarding the impact of the allegation on her and that she was finding the situation overwhelming: pg[52]The same day Mr Coyle emailed Ms Ockleford to inform her that he had spoken to Dr Turton that morning and that Dr Turton was refusing to teach her class until the grievance was resolved and was also refusing to take sick leave because she claimed she was being bullied: pg 674.[53]On 29 January 2022 (a Saturday) Dr Turton texted Mr Coyle stating that if Ms Woodman was at Maidstone on Monday she wanted to work at home, that she did not trust herself: pg861. Dr Turton sent a further text on 30 January 2022 (a Sunday) stating that she will work from home on Monday to stay safe: pg862. Mr Coyle responded that if she was unable to attend work she should ring the sickness absence line. Dr Turton enquired as to whether Ms Woodman would be at Maidstone. Mr Coyle asked if Dr Turton was making it a condition of whether she would attend work and was there anyone else Dr Turton wanted Mr Coyle to remove for her. He asked if Dr Turton had spoken to HR about this ‘demand’. Dr Turton responded stating that she was not asking for Ms Woodman to be removed but just that she did not want to see her. On 30 January 2022 Dr Turton also emailed Ms Ockleford stating that she needed support and that she had been prescribed Diazepam: pg 877.[54]On 31 January 2022 Mr Coyle forwarded his text exchange to Mr Cotton stating ‘she basically demanded that I remove [Ms Woodman] from the UCM campus today’: pg 680. Mr Coyle went on to say that he had in fact arranged for Ms Woodman to be in the other campus but did not wish to inform Dr Turton of this.[55]On 31 January 2022 Dr Turton attended a wellbeing meeting with Mr Coyle and Ms Ockleford: pg 967. She informed them of her distress regarding the investigation against her. During this meeting she commented that she would be unable to control her behaviour if she was to see Ms Woodman which could result in verbal or physical abuse. She requested that she be permitted to work at home during the investigation which was agreed. Dr Turton in evidence stated that she was not a violent person and that she had no intention of harming Ms Woodman but that this was the only way she could think of to force the Respondent to listen to her and ensure that she was kept separate from Ms Woodman. We noted from this that Dr Turton was prepared to use her disability to her advantage and took this into account when assessing her evidence. The Respondent agreed to refer Dr Turton to Occupational Health (OH), to permit her to work from home during the investigation and to provide training for her colleagues on hidden disabilities.[56]On 6 February 2022 Dr Turton emailed Mr Coyle stating that she was to get signed off sick due to the stress she was under: pg 977. She stated that she had tried marking and was unable to do so and that she did not feel that a reasonable attempt had been made to keep her safe.[57]On 7 February 20222 Dr Turton was signed off work with ‘stress related illness’ until 21 February 2022: pg 221.[58]On 9 February 2022 Mr Coyle received a collective complaint from the class representative of group B about the disruptions to classes caused by Dr Turton’s absence and her conduct during classes: pg 694.[59]On 10 and 12 February 2022 Mr Coyle attended class group B and C and recorded the issues that they raised: pgs 701 and 708. Dr Turton in her evidence stated that these complaints were fabricated. We considered it unlikely that Mr Coyle had fabricated these complaints, particularly since these meetings were triggered by the email received the previous day.[60]On 14 February 2022 Ms Peet emailed Mr Coyle to inform him of conversations that she had had with two groups of students (Group A and Group B) and similar complaints that they had made in relation to Dr Turton’s conduct during teaching: pgs 718-719.[61]On 16 February 2022 Mr Coyle emailed Mr Cotton and Ms Le Poidevin forwarding the e-mail from Ms Peet so that it can be ‘logged’ and stated ‘we are always now trying to manage these kinds of things’: pg 718. The email also recorded that Dr Turton’s marking had been redistributed (issue 3.2.4 and 6.1.6). It concluded with the comment: ‘But again, it’s just undermining the team and the other people in the team. It's like running uphill the whole time!’[62]On or around 22 February 2022 Mr Lampard completed his investigation into student C’s complaint: pg 729. The investigation report, and the evidence gathered as part of that investigation, has not been disclosed by the Respondent as part of these proceedings. The only reference is provided in Mr Hyland’s subsequent grievance report: pg 1008. This recorded that Mr Lampard concluded that there was no specific evidence to support the complaint against Dr Turton and that Ms Woodman had denied telling the student anything that would have led to the complaint. He recommended mediation between Dr Turton and Ms Woodman. Dr Turton stated in evidence that following the investigation student C apologised to her and said that she now knew that Ms Woodman had made up the comments.[63]We considered whether student C had fabricated the allegation. We accepted that she had a motive because she thought that Dr Turton had deleted her work. However we thought it unlikely that she would fabricate an allegation involving a third party rather than alleging that Dr Turton had said this directly to her. We also thought it unlikely that she would have given the apology that she did to Dr Turton. We have also listened carefully to the audio of student C telling her friend. This appeared to be a genuine conversation and student C only divulged that the source of the information was Ms Woodman on being questioned about it.[64]We also found that the other allegations that student C made against Dr Turton could be explained. Student C had been informed that Dr Turton had deleted her work by Ms Woodman, so this explained the source of that complaint. Dr Turton admitted that she did make a comment about student C’s niece who had worked at the college for a short time, which she thought had been misinterpreted by student C. We consider it likely that Dr Turton’s comments on student C’s assignment were viewed by student C as ‘rude and unhelpful’ since this complaint is consistent with the complaints of other students about Dr Turton.[65]We considered whether it was plausible that Ms Woodman would have informed student C that Dr Turton had made a racist comment about her traveller heritage. We took into account that this comment was made against the backdrop of the other comments that Ms Woodman had made to students about Dr Turton. We noted that Ms Woodman did not refer to this matter in her witness statement despite this being an identified issue in this case. In evidence she stated that the student had informed her that she had been given the information by a different member of staff. We do not accept Ms Woodman’s evidence, Mr Lampard’s investigation did not refer to this possibility. Further, the complaint made by student C, the audio of her discussion with her friend and the apology to Dr Turton clearly identified that it was Ms Woodman who told her. On the basis of the evidence before us, we concluded on the balance of probabilities that Ms Woodman did provide student C with fabricated information about Dr Turton.[66]On 22 February 2022 Ms Woodman sent an email to students in psychology unit 3 attaching an updated version of the mental health workbook: pg 981 (issue 3.2.6 and 6.1.6). She referred to amendments to the wording and the ‘boxes’ but stated there was nothing detrimental to those who had already started.[67]On 23 February 2022 Dr Turton was signed off work for a further 2 weeks until 1 March 2022: pg 222.[68]The same day Dr Turton attended an OH assessment which deemed her fit to return to work ‘from a medical perspective’: pg 246. It referred to Dr Turton feeling overwhelmed about student C’s complaint and that she had ‘angry feelings’ about the member of staff responsible however the risk of harm was likely to be low. It was recommended that Dr Turton and Ms Woodman ‘be kept apart with [Dr Turton] working from home until there has been a resolution’ of the workplace issues (issue 5).[69]On 26 February 2022 Dr Turton became aware of the changes to the unit 3 workbook (issue 3.2.6 and 6.1.6), and emailed Mr Coyle objecting since the workbook had already been approved by Mr Coyle and sent out to students: pg 740. Mr Coyle responded on 28 February 2022 informing Dr Turton that it had been a collective decision, that the change had come about due to Dr Turton’s absence and an assumption that this would be long term and that other tutors would need to cover the whole of her unit: pg 739. He explained that the tutors wanted to change the assessment slightly since they were the ones delivering it.[70]On or around 27 February 2022 Dr Turton put up a Facebook post stating: ‘A recent newcomer where I work has, among other despicable things, told a vulnerable student a bunch of lies causing the girl to think I had said some terrible things about her. Sadly, the people that I work with are not always as intelligent as one might expect so this has now become gossip that has reached some of last year's students. Please let me know if you hear anything….. The lecturer who told this girl those awful things has done a lot of damage to her and me. I would like to know the extent of the damage that has been done to my reputation so that I can repair it. Please let me know. You can post or send messages. I am appealing for help with this’: pgs 1500-1501 (issue 7.1.1). Dr Turton had 40 ‘friends’ on Facebook including some ex-students but no current students. The message was sent in ‘private’ mode. Her daughter, who was one of her Facebook friends, informed her later that day that the post was not appropriate and Dr Turton took it down. A number of students responded and informed her that there were rumours that she had lost her job for being a racist and refusing to mark a student’s work because they were a gypsy (issue 6.1.1).[71]On 27 February 2022 Dr Turton emailed Mr Coyle to inform him of these rumours: pg 985.[72]On 28 February 2022 Mr Coyle forwarded Dr Turton’s email of the 27 February 2022 to Mr Cotton and Ms Le Poidevin stating he did not know how to respond and objecting to Dr Turton returning to work because he was concerned about her mental health: pg 735. Ms Le Poidevin responded that Dr Turton ‘doesn’t sound stable to me at the moment’ and agreed that Dr Turton’s return was likely to be ‘explosive in terms of team relations’: pg 734. She also queried how Dr Turton had been in contact with former students. There is a discussion about the need for an investigation: pgs 737 and 745.[73]On 28 February 2022 Dr Turton attended a meeting with Mr Coyle, Ms Ockleford to review her OH report: pg 998. It was agreed that she would return to work on 8 March 2022, working at home until the workplace issues were resolved. It was also agreed that she did not need to mark unit 3 and could start on unit 4 (issue 3.2.4 and 6.1.6). Mr Coyle agreed to work with the Leaning and Development Team to provide training on hidden disabilities.[74]On 1 March 2022 Dr Turton was signed off work for a further 1 week until 8 March 2022 with ‘stress related illness’: pg 222.[75]On 2 March 2022 Ms Woodman informed Mr Coyle and Ms Le Poidevin about the Facebook posts that Dr Turton had made: pgs 993-994, 769.[76]On 3 March 2022 Ms Le Poidevin wrote to Ms Thompson stating that Dr Turton ‘is not in the right frame of mind to return to work’ and expressing a preference that Dr Turton not be at work at this time: pg 768. Ms Thompson responded that the Respondent cannot suspend someone for that reason and that the Respondent had to rely on medical advice: pg 1002.[77]On 7 March 2022 Mr Coyle and Mr Cotton received a further concern from a student regarding Dr Turton holding lessons virtually which was forwarded to Ms Le Poidevin and Ms Thompson: pg 1034. Ms Le Poidevin again expressed a preference for Dr Turton not to return to work remotely or otherwise until the investigation was completed: pg 1032. Ms Thompson responded that she did not support this and wrote ‘please be mindful what you are putting into emails…’: pg 1031. We noted that there were few emails in the hearing bundle of communication between senior personnel in relation to Dr Turton after this warning.[78]On 8 March 2022 Dr Turton returned to work working in Maidstone for 1 day pw and at home for 4 days pw. Dr Turton found working from home isolating. During a telephone call Dr Turton informed Mr Coyle that she was feeling suicidal. After the phone call Mr Coyle sent Dr Turton links for mental health helplines: pg 1037. Dr Turton responded ‘excellent. Thank you’: pg 1038[79]The same day Mr Coyle emailed Dr Turton telling her to leave student questions to those marking the unit and to direct student questions on unit 3 to Ms Peet (issue 3.2.4 and 6.1.6).[80]On 18 March 2022 Dr Turton was invited to a meeting to discuss both her grievance and the disciplinary investigation into the Facebook posts: pg 1075. Dr Turton responded to Ms Ockleford by email stating ‘I still can't see why it was wrong. I needed to know whether someone in my team was discussing me with past students as part of the smear campaign I have been subjected to’: pg 1082.[81]On 20 March 2022 Dr Turton was taken by ambulance to A&E. She was diagnosed with Atrial Fibrillation. Dr Turton says she immediate text Mr Coyle at 3pm to inform him. She was not challenged on this evidence.[82]On 21 March 2022 Mr Coyle emailed Mr Cotton stating that he had not received any text or communication from Dr Turton and stating that ‘this has been done to inflict maximum damage on colleagues and on the course’: pg 1084. Mr Cotton then emailed Ms Ockleford and others stating that neither Mr Coyle or himself had been notified and ‘we literally cannot carry on like this….’: pg 1101.[83]On 22 March 2022 Dr Turton was referred to OH: pgs 1105-1107. OH was specifically asked if Dr Turton was fit to attend management discussions with regards to the grievances and disciplinary investigations.[84]On 28 March 2022 Dr Turton came face:face with Ms Woodman when exiting the elevator. She expressed distress at this encounter to Mr Coyle and asked that Mr Coyle would let her know if Ms Woodman was on the premises so that she could avoid her: pg 1108.[85]On 30 March 2022 Dr Turton attended an OH assessment: pgs 250-253. OH reported that Dr Turton no longer had suicidal thoughts but still had unresolved feelings and emotions about what had happened. OH reported that Dr Turton was fit to return to work on both campuses and fit for management meetings. Following this she had a meeting with Mr Cotton and another to discuss her return to work: audio 2. During this meeting Mr Cotton discussed the difficulty in covering her sickness absences and stated: ‘… I haven't got 2 Sharons’ [sic] in the department - I'd love to… but I haven't… you know, with that psychology knowledge….’. At the same meeting Dr Turton accepted that the changes to the unit 3 workbook were minor since she referred to there being ‘not many changes’: audio 2 (issue 3.2.6 and 6.1.6).[86]Sometime in March, prior to Dr Turton’s return to work, Mr Coyle stated in evidence that he had had a ‘serious conversation’ with the team about how they should behave towards Dr Turton. He informed them that she had ASD and that it would be ‘highly desirable… if they would not have social interaction with her’.[87]On 1 April 2022 Dr Turton attended via Teams the grievance and disciplinary investigation meeting with Mr Hyland (Director of Communications and Marketing) who had been appointed to investigate: pgs 1121-1126. She was accompanied by her daughter. Ms Ockleford attended as HR advisor and there was a separate note taker so that Ms Ockleford could support Dr Turton during the meeting. The meeting took place over two sessions to enable Dr Turton to have breaks. Mr Hyland stated in evidence that Dr Turton was asked during the meetings if she was in a fit state to continue to which she responded ‘yes’. At no point did she express any desire to withdraw nor did he see anything in her presentation to suggest to him that the investigation should be halted.[88]On 20 April 2022, Dr Turton returned to work at Medway campus. That morning she went to the staffroom to collect her chair wearing large headphones in order to minimise social interaction (issue 6.1.4). The staffroom was a large room (3 times the size of the tribunal room) with a kitchenette at the end. It was shared with other teams. Each team had their own allocated table with desks next to and opposite each other. Dr Turton’s desk was next to Ms Peet’s. Therefore when Dr Turton was collecting or replacing her chair she was having to put it next to Ms Peet. Ms Woodman and Ms Peet were there, Dr Turton did not look at them. Ms Peet stood up and walked up to her, bent down, waved at her and tried to say hello.[89]On 21 April 2022 Ms Seager, Ms Woodman and Ms Peet emailed Mr Coyle complaining about Dr Turton not wanting to engage with them the previous day: pgs 1133-1135.89.1 Ms Seager said ‘Ms Woodman, Ms Peet and I said good morning to Dr Turton and she ignored us. Ms Peet even said it again loudly’.89.2 Ms Woodman said Dr Turton ignored ‘all attempts at greeting’ and that ‘she pointedly ignored hand gestures to get her attention’.89.3 Ms Peet said, ‘I am very cross because Sharon has come into the office, I said good morning and she ignored me (she had her headphones on) so I caught her eye and said hello again….’. Ms Peet stated that she said hello again when Dr Turton was standing next to her and again she ignored her ‘so I waved to her and she ignored me again’. These complaints corroborate Dr Turton’s account of what had occurred on the 20 April 2022.[90]Mr Coyle stated in evidence that he spoke to Ms Peet about her complaint and acknowledged that it was very difficult for her. He asked her to respect Dr Turton’s wishes, to remain quiet and avoid social interaction.[91]On 21 April 2022, in the afternoon, Dr Turton entered the staffroom to return her chair to her desk space (issue 6.1.4; issue 5). Ms Bateman was sitting at her desk which was facing the door. Ms Woodman was sitting next to her and Mr Coyle was sitting diagonally opposite. Ms Peet was standing 3-4 feet away near a filing cabinet. The room had 20-40 people and was noisy at the end of the day. People were moving around getting ready to leave and some people had head sets on. We considered that these factors, along with the fact that teams sat on different tables, account for why no-one from any of the other teams intervened or reported this incident.[92]Dr Turton says that on seeing her Ms Woodman shouted, ‘hello Sharon [Dr Turton]’. Dr Turton continued to replace her chair. Ms Peet then walked up to her and put her hands on her hip, put her face close to Dr Turton and shouted, ‘hello Sharon’. Dr Turton responded ‘really’ and Ms Peet said ‘yeah really’ with her hands on her hips smirking. Mr Coyle did not intervene. Dr Turton left the room. We consider that Dr Turton’s evidence to us was consistent with the account provided to Mr Cotton and Ms Ockleford the next day (see below).[93]Ms Bateman confirmed that she saw Dr Turton enter the staff room put her chair back next to Ms Peet and then walk over to the kitchenette. Ms Bateman stated in evidence that she did not hear Ms Woodman shout hello but did see Ms Peet approach Dr Turton and stand in front of her with her hands on her hips and shout ‘hello Sharon’. She thought it was excessive to shout at someone when only 3 feet away from them. Ms Peet then looked around towards Ms Woodman and Ms Seager. Ms Bateman considered this to be very confrontational. Ms Bateman stated that Dr Turton did not answer back and left the office. When Ms Peet returned to her seat she said, ‘you all saw that I was trying to be friendly’. Ms Bateman said she was shocked but she didn't say anything and subsequently left to find Dr Turton. Therefore her evidence largely corroborated what Dr Turton said in relation to Ms Peet but not Ms Woodman.[94]We considered carefully whether Ms Bateman’s account should be preferred over Dr Turton’s. Ms Bateman came across as an honest witness, she had a clear view and was sitting next to Ms Woodman. Her evidence as to what she remembered seeing and hearing was clear. We took into account that Dr Turton was capable of saying something to achieve an end and was also capable of misconstruing or misunderstanding the actions of others. However when it came to providing factual evidence as to what she saw and heard we considered her to be an honest and reliable witness. We particularly took into account that Dr Turton’s recollection of what occurred on the 20 April 2022 was supported by the complaints made by Ms Woodman, Ms Peet and Ms Seager. Further Dr Turton’s evidence could not be explained by the vagrancies of memory since she had reported it the next day to Mr Cotton and Ms Ockleford, but this could explain Ms Bateman’s account provided over two years later. We noted from both accounts that Ms Peet’s actions were the more noteworthy, concerning not just shouting ‘hello’ but going over to Dr Turton, standing in front of her and putting her hands on her hips. We noted that in the audio of the meeting with Mr Cotton, Dr Turton also initially referred to Ms Peet’s conduct only referring to Ms Woodman in the context of providing a more complete account at the end of the meeting: audio 3. This could account for why Ms Bateman remembered Ms Peet’s conduct but not Ms Woodman’s.[95]We also took into account that the Respondent adduced no positive evidence as to what had taken place. Neither Ms Woodman nor Mr Coyle had referred to this incident in their witness statements. In cross examination Ms Woodman stated that it was not an event that she recollected at all. She only recalled the 20 April 2022 incident. Mr Coyle was unable to explain why he had referred to the incident the previous day (despite not being present) but did not refer to the incident at which he was present. Under cross examination, Mr Coyle confirmed that he had heard Ms Peet say ‘hello’ to Dr Turton on two occasions: the first time when she was standing at her desk and the second time when she was crossing the room and passed by Dr Turton. He stated that the second ‘was louder’ than the first, albeit not shouting. We considered that his evidence to the extent that it differed from that of Dr Turton and Ms Bateman could not be relied upon. He had not been forthcoming about what had occurred in his statement and in our view was seeking to minimise what took place before him in order to explain why he had not intervened.[96]Taking all the above into account we found that both Ms Peet and Ms Woodman had shouted ‘hello’ at Dr Turton.[97]Following this incident, Dr Turton did not go into the staff room again and instead asked Ms Bateman to get her chair and put it back. Ms Bateman informed us that Ms Woodman and Ms Peet asked her to stop doing this but she ignored them because they did not have the authority to ask her not to.[98]That evening at 6:34 Dr Turton emailed Mr Coyle and Mr Cotton stating ‘could you please ask [Ms Woodman] and [Ms Peet] to leave me alone. I made it clear yesterday that I do not want them to speak to me. Now I feel they are taunting me by trying to get me to say hello’: pg 1136. She specifically asked that they leave her alone until the investigation was completed (issue 5).[99]On 22 April 2022 Dr Turton had a meeting with Mr Cotton during which she provided an account of what had taken place the previous day: audio 3. During the same meeting there was a discussion about what students A and B had said to Mr Coyle on the 4 January 2022 meeting. By this date Dr Turton had received student A’s audio tape of the meeting and she knew what they had said. She asked Mr Cotton whether Mr Coyle had informed him of Ms Woodman tapping her head and referring to Dr Turton’s poor memory. Mr Cotton confirmed that Mr Coyle had and then said ‘[A]nd I think part of the investigation now, it's being kind of sort of probed and things like that I don't... yeah, I don't think the students were very forthcoming that was my understanding of it’. Dr Turton responded that they were very forthcoming (issue 3.2.2 and 6.1.6).[100]Following the meeting Mr Cotton emailed Dr Turton with his summary of the discussion points: pgs 1137-1138. He recorded that Dr Turton had informed him that she would not be engaging in pleasantries with Ms Woodman and Ms Peet whilst the investigation was ongoing. He responded that he would like Dr Turton to engage with staff in the Access team when on site and sharing the same workspace. He informed her that he was not in a position to instruct staff not to greet a colleague, that the college is a professional environment and that he expected staff to be polite and courteous with each other: pg1137 (issue 5). Dr Turton responded by e-mail stating that: ‘I want to be able to communicate with [Ms Peet] and [Ms Woodman]. Not being able to is also distressing for me. Avoiding them is not easy. I feel certain that once boundaries are put in place normal communication will resume’. She went on to state that: ‘my behaviour is because of my disabilities and how those staff members have treated me this academic year’.[101]Dr Turton also emailed Ms Ockleford with her account as to what had occurred the previous day: pg 1139. She informed Ms Ockleford that she was suffering chest pains and that until the investigation was completed she did not want Ms Woodman or Ms Peet to approach her because it distressed her and she wanted boundaries put in place. She asked that Ms Woodman and Ms Peet email her with work related questions (issue 5).[102]On 13 June 2022 Mr Hyland informed Dr Turton of the grievance outcome: pgs 1247-1251. Her complaints against Ms Peet and Ms Woodman were dismissed, her complaint against Mr Coyle was partially upheld. The complaint in relation to Ms Woodman’s comments to students about Dr Turton were dismissed in part due to lack of evidence. This was because Mr Hyland having decided not to interview any of the students due to the divisions in the student body. Dr Turton had not made him aware of the audio recordings.[103]In the investigation report, Mr Hyland expressed concerns about the ‘toxicity in the team’ and that this had not been properly managed and that ‘I am convinced that facilitation of the resolution of these disputes is not within the skill set of RC [Mr Coyle] or the wider management team’. We take this to be a reference to Mr Cotton and Ms Le Poidevin. He made a number of recommendations including restorative practice training for managers, hidden disability training for the Access team and mediation by an external mediator: pgs 1021-1022. Mr Hyland recommended that if possible mediation should commence before the summer break: pg 1250.[104]In the same letter Dr Turton was informed of the outcome of the disciplinary investigation: pg 1249. She was informed that she had breached the social media policy and had brought the Respondent into disrepute. However it was accepted in mitigation that Dr Turton’s action was not deliberate and that the policy may not have been accessible to someone with her disabilities. He went on to state that it was ‘terribly misguided’ for Dr Turton to post the comments that she did and to be friends on social media platforms with students / former students. Mr Hyland concluded that ‘there are facts that would justify formal disciplinary action being taken against you, but in my view the mitigation should downgrade this matter from being considered as potential Gross Misconduct’.[105]The same day Dr Turton separately emailed Ms Thompson and Mr Herring informing them of her intention to appeal the grievance and disciplinary investigation outcome: pgs 1262 and 1267. Later that day she emailed Mr Hyland apologising stating she had now read his report and referred to his recommendations as being ‘spot on’: pgs 1270 and 1270.[106]On 14 June 2022 Dr Turton emailed Mr Coyle stating that now the investigation had been completed she wanted to try coming into the office. She asked that he ask Ms Woodman and Ms Peet ‘not to pressure me to be social’ and suggested that they read the hidden disabilities policy. She stated that she would be sociable when she felt comfortable but that it ‘may take a bit of time’. She explained that ignoring people was a coping strategy which occurred when she felt threatened ‘when it gets very bad I cannot even speak’: pg 1263. Mr Coyle did not reply to this email.[107]On 15 June 2022 Dr Turton formally retracted her appeal and apologised saying she had misread the grievance and disciplinary findings: pg 1265. She went on to state that ‘I am confident that the suggestions put forward by [Mr] Hyland will resolve the issues and just want to put the whole terrible mess behind me’. She expressed ‘deep appreciation’ to Ms Ockleford for her contribution and referred to her as the ‘sole reason’ she was able to get through this ordeal. The same day Ms Ockleford asked Dr Turton for her consent to mediation, which she provided: pg 1272. Ms Ockleford also asked Dr Turton for her input on arranging hidden disabilities training: pg 1273. Dr Turton responded that she did not know of any providers, but suggested someone who understood Asperger’s and PTSD.[108]On 20 June 2022 Dr Turton spoke to Mr Coyle about her request by email dated 14 June 2022 that Ms Woodman and Ms Peet not pressurise her to be sociable. He suggested that she write to Ms Woodman and Ms Peet direct which she did the same day: pg 1275.[109]That evening Dr Turton was taken by ambulance to A&E due to a high heart rate and low blood pressure. She was diagnosed with Supraventricular Tachycardia and signed off work: pg 1277[110]On 22 June 2022 Mr Coyle asked Dr Turton via teams messages to cover revision workshops for the stragglers at the Maidstone campus. He informed Dr Turton that Ms Woodman and Ms Peet were providing workshops at the Medway campus: pg 1502. Dr Turton agreed to attend on Monday and Wednesday. Half an hour later Mr Coyle sent a follow up message to Dr Turton stating ‘[Ms Peet] is in at Maidstone as she wants to say hello to the groups. I just thought I would let you know’: pg 1504 (issue 6.1.5). Dr Turton responded, ‘that’s fine’. Dr Turton’s evidence was that she felt Mr Coyle had tricked her into being at Maidstone and having to be in contact with Ms Peet. We accept that is how she felt but do not find that Mr Coyle had asked Dr Turton to go to Maidstone knowing that Ms Peet was going to be on the premises. We think it more likely that following the first exchange with Dr Turton, Mr Coyle had informed the team that Dr Turton was to be at Maidstone and that this had prompted Ms Peet’s request. We therefore accepted Mr Coyle’s evidence that Ms Peet had approached him in the half hour period between Dr Turton agreeing to return to work and Dr Turton being informed of Ms Peet’s presence.[111]On 23 June 2022 Dr Turton attended a back to work meeting with Mr Coyle. She requested that the grievance recommendation of ‘getting someone in to repair the relationship’ be implemented. Stating ‘I just have to be able to feel safe’: audio 1. She went on to inform him that she felt very distressed about Ms Peet coming into her classroom. Mr Coyle’s evidence to us was that prior to, or at, this meeting he informed Dr Turton that Ms Peet would not be coming into her classroom and that Ms Peet would be seeing the students in the biology room opposite her classroom. We do not accept his evidence since the audio does not record that Mr Coyle informed Dr Turton of this.[112]Mr Coyle sent Dr Turton an email summarising the discussion. Dr Turton responded stating that she had chosen not to be in the room when Ms Peet ‘comes in’: pg 1280. She explained that it was her coping strategy, informed him that she was not ready to engage in dialogue with Ms Woodman and Ms Peet and asked that this be respected. She asked if he had read the Respondent’s hidden disabilities policy. This is further evidence that Mr Coyle had not informed Dr Turton that Ms Peet would be in the biology room. This was the last day that Dr Turton was at work.[113]The same day Dr Turton wrote to Ms Ockleford stating that she considered Mr Coyle was deliberately disregarding her coping strategies and that she felt the intimidation was starting again: pg 954. She again referred to none of the grievance recommendations being put in place.[114]On 24 June 2022 Dr Turton complained to Mr Cotton that the grievance recommendations on taking steps to repair the relationship in the team had not yet been initiated and that it was affecting her mental and physical health: pg 1281. She referred to her discussions with Mr Coyle and that she did not consider she was being treated with respect or decency.[115]The same day Dr Turton, Ms Woodman and Ms Peet received notices that they were at risk of redundancy due to a reduction in student numbers (issue 3.2.7). Ms Bateman was not included. Ms Ockleford stated that this was because the Respondent needed to continue to employ a specialist biology lecturer to deliver the biology units. She accepted that she was not the decision-maker and could not explain why Dr Turton, who was employed as a specialist psychology lecturer, was placed into the ‘at risk’ redundancy pool. The decision was made by Mr Cotton and Mr Le Poidevin, who have not attended this hearing to give evidence.[116]On 25 June 2022 Dr Turton emailed Mr Cotton challenging the decision to put her at risk of redundancy: pg 1282. She disputed that her role was redundant since there was still a need for a specialist teacher to teach psychology. She stated that she felt this was a ‘constructive dismissal’, by which she meant she felt she was being dismissed. She asked for an assurance that the process would be fair and referred to her disabilities and the grievance recommendations having not been put in place.[117]On 30 June 2022 Dr Turton emailed Mr Herring challenging the rationale for putting her at risk of redundancy: pg 1285[118]Dr Turton had been invited to attend a redundancy selection interview on 7 July 2022. On 2 July 2022 she emailed Ms Thompson restating her reasons as to why she should not have to go through a redundancy process and stating that she had been signed off sick for two weeks: pgs 224 and 1312. Ms Thompson responded on 5 July 2022, offering to change the date to 19 July 2022 following expiry of her sick note: pg 1309. The Respondent also offered to do the meeting via teams and stated that it would permit her to be accompanied by a family member. If she was not well enough then she could submit her answers to the interview questions in writing and stated that the Respondent would consider any representations for other reasonable adjustments to the process: pg 1310. On 8 July Dr Turton sought an extension to 22 August 2022 following her return from annual leave: pgs 1306-1307. The Respondent did not agree to this request.[119]On 9 July 2022 Dr Turton emailed Ms Ockleford and Ms Thompson enquiring about voluntary redundancy: pgs 1316 and 1318.[120]On 13 July 2022 Mr Herring emailed Dr Turton informing her that the Respondent was willing to accept her request for voluntary redundancy: pg 1326.[121]On 14 July 2022 Dr Turton decided to take voluntary redundancy: pgs 1325- 1326 (issue 3.2.8). She stated that this was due to her health and that ‘this whole year has been utterly traumatising for me and I can no longer cope with everything work-related. I will be taking early retirement from teaching because of it’. In evidence she stated that she was not in the right state of mind to go through a redundancy selection process whether it was in person, via teams or in writing. She was having a breakdown. She felt that she had no option but to take redundancy saying she believed if she stayed she would have died. She accepted that this was a marked change from her positivity following the grievance outcome, and that her decision was not rationale. There were a number of triggers and factors including concerns about her health, her view that that Ms Woodman and Ms Peet were not going to stop, that Mr Coyle had ‘tricked her’ into having contact with Ms Peet and that the grievance recommendations had not been put in place. This came on top of ‘being subjected to a year of bullying, harassment and discrimination’.[122]On 29 June 2022 Dr Turton commenced ACAS early conciliation. She received the ACAS early conciliation certificate on 12 July 2022: pg 1.[123]On 2 August 2022 Dr Turton withdrew her second grievance stating that matters would now be determined by a tribunal: pgs 1357-1358.[124]On 11 August 2022 Dr Turton presented her claim form: pgs 2-23.[125]On 31 August 2022 Dr Turton’s contract was terminated for voluntary redundancy (issue 3.2.8).[126]Following the termination of her contract a member of staff from another department was used to teach the psychology access course for the 2022/23 academic year.[127]On 18 April 2023 this Tribunal made the standard order for disclosure: pgs 58- 59.[128]On 11 March 2024 Dr Turton’s former solicitors made the following request:128.1 For disclosure of all notes taken before, during and after the racism investigation.128.2 To confirm whether the Respondent was calling certain witnesses including Ms Peet.128.3 To confirm whether the Respondent was intending to call Mr Cotton and Ms Le Poidevin and if not provide an explanation as to why not: pg 93. This request was chased on 3 April 2024: pg 94, and again on 10 May 2024: pg 95. On the 16 May 2024, following a change in solicitors with conduct of the case on the Respondent’s side, there was a discussion between the parties’ solicitors about these matters, following which Dr Turton’s solicitor sent a further email forwarding her previous requests: pg 102. The Respondent’s solicitor responded stating that he would take instructions and revert the next week: pg 101. On 24 May 2024 the Respondent’s solicitor wrote that he was awaiting his client’s response: pg 99 and on 31 May 2024 he wrote that he was meeting his client the next week: pg 98. On 4 June 2024 the Respondent’s solicitor wrote that ‘I have discussed matters with my client and I am awaiting the information’: pg 97. On 4 July 2024 Dr Turton’s solicitor again chased the Respondent’s solicitor to provide the further information requested. The Respondent’s solicitor did not respond and never provided this disclosure or information.
THE LAW
[129]There was no dispute between the parties as to the correct law to be applied, with the exception of the application of the burden of proof. The Respondent provided detailed legal submissions (which were agreed by the Claimant) and which we adopted. These are only briefly summarised below, with a more detailed analysis of the provisions dealing with the shift in the burden of proof. Direct Disability Discrimination[130]Section 13 of the Equality Act 2010 (EA 2010) defines direct discrimination as where: ‘a person(a) (A) discriminates against another(b) (B) if, because they protected characteristic, that person treats B less favourably than a treats or would treat others’. In this case the relevant protected characteristic is disability.[131]The concept of less favourable treatment presumes an actual or hypothetical comparator. The relevant circumstances of the comparator must be ‘the same, or not materially different’: Section 23 EA 2010; Shamoon v Royal Ulster Constabulary [2003] UKHL 11.[132]When considering the reason for the less favourable treatment the fact that claimant’s protected characteristic was part of the circumstances in which the treatment complained of occurred does not necessary mean it formed part of the ground or reason for that treatment: Amnesty International v Ahmed [2009] ICR 1450. It is the reasons of the decision maker which should be considered: Reynolds v CLFIS (UK) Ltd [2015] ICR 1010. Harassment related to Disability Discrimination[133]Section 26 of the EA 2010 defines harassment as where: ‘(1) A person(a) (A) harasses another(b) (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— i. violating B's dignity, or ii. creating an intimidating, hostile, degrading, humiliating or offensive environment for B. …. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect.’ 134. ‘Unwanted’ means essentially the same as ‘unwelcome’ or ‘uninvited’.[135]Violation of dignity and creation of intimidating etc environment are significant and strong words. It is a high bar, requiring intention and effects that are serous and marked and not those which are, though real, truly of lesser consequence: Grant v HM Land Registry [2011] ECWA Civ 769; Betsi Cadwaladr University v Hughes UKEAT/0179/13. In relation to the second limb and environment is a state of affairs whilst it may be created by the incident the effects should be of longer duration: Weeks v Newham College of Further Education (UKEAT/0630/11); GMB v Henderson [2015] IRLR 451[136]Purpose and effect are alternatives and should be considered separately. Purpose requires intention, whereas effect is unintentional. Effect requires consideration of a subjective question, whether the claimant perceives themselves to have suffered the effect in question and an objective question as to whether it was reasonable for the claimant to consider that the treatment had that effect: Pemberton v Inwood [2018] CR 1292; Richmond Pharmacology v Dhaliwal [2009] IRLR 336. Therefore if the claimant is unreasonably prone to take offence there will be no harassment within the section. 137. ‘Related to’ is a broad term that does not require a direct causal link but only a connection or association: R (EOC) v Secretary of Trade and Industry [2007] ICR 1234. It however it has its limits and as for direct discrimination the fact that the protected characteristic in question forms a relevant part of the background or would satisfy a ‘but for’ causation test is not enough: UNITE the Union v Nailard [2019] ICR 28. Discrimination arising out of Disability[138]Section 15 of the EA 2010 provides that: ‘(1) A person(a) (A) discriminates against a disabled person(b) (B) if — (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.’[139]Unfavourable treatment means being put at a disadvantage. 140. ‘Causation requires consideration of the conscious or unconscious reason in the mind of the alleged discriminator. This need not be the sole reason but it must be a significant or at least more than trivial reason: Pnaiser v NHS England [2016] IRLR 170 (EAT). Once the reason is established then the question will be whether that reason was because of ‘something arising in consequence of the claimant’s disability’. It is well established that in considering this issue there may be several links in the chain: Sheikholeslami v University of Edinburgh [2018] IRLR 1090; Pnaiser v NHS England [2016] IRLR 170 (EAT)[141]Justification (proportionate means of achieving a legitimate end) is an objective test and requires critical scrutiny by the tribunal. Proportionality includes consideration of whether lesser measures could have been adopted. Reasonable Adjustments[142]Section 20 of the EA 2010 provides that an employer in under a duty to make reasonable adjustments where: ‘ (3) .... a provision, criterion or practice of [an employer] puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.’ There is a defence under Sched 8 para 20(1) of the EA 2010 if the employer does not know, and could not reasonably be expected to know that the disabled person had a disability and is likely to be placed at a disadvantage by the PCP.[143]The duty requires an employer to take positive steps to avoid a substantial disadvantage: Archibold v Fife [2004] IRLR 651.[144]PCP is construed widely and includes any formal or informal policies, rules, practices, arrangements including one off decisions.[145]A substantial disadvantage is defined as ‘more than minor or trivial’: EA 2010 s. 212(1). The comparison is not non-disabled person generally but those to whom the PCP is applied.[146]In relation to what is a reasonable adjustment, the test of reasonableness is an objective test. It is not necessary for the tribunal to conclude that there was a good prospect of an adjustment removing the disadvantage it is sufficient to conclude that there would have been a chance of the disadvantage been alleviated: Griffiths v Secretary of State for Work and Pensions [2017] ICR 160 (CA). Burden of Proof[147]Section 136 of the EA 2010 provides that: ‘(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.’ This provision applies to all discrimination claims not just direct discrimination[148]Thus the burden of proof is initially on the claimant to establish primary facts from which the tribunal could decide in the absence of any other explanation that discrimination took place (stage 1). It is important to note the word ‘could’; it is not necessary for the tribunal to reach a definitive conclusion. The burden then shifts to the Respondent to prove that the discrimination did not occur (stage 2). This provision was introduced because it was recognised that it is rare to find direct evidence of discrimination and that it was often difficult for claimants to prove the employer’s reason or motivation for doing something. Guidelines on the application of the burden of proof provisions is set out in Igen Ltd (Formerly Leeds Career Guidance) and Oth v Wong [2005] ICR 931.[149]It is not sufficient for the claimant merely to prove less favourable treatment and a protected characteristic, something more is required: Madarassy v Normura International Plc [2007] EWCA Civ 33 (CA). This can include in appropriate cases inferences from evasive answers, failure to comply with the ECHR Code, failure to disclose documents. However unfair and unreasonable treatment on its own is not enough to shift the burden of proof: Glasgow City Council v Zafar [1998] IRLR 26 (HL). If the burden of proof shifts to the Respondent then to discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever because of or related to the protected characteristic.[150]There was a dispute between the parties as to the significance of the failure of the Respondent to disclose documentation, call key witnesses or adduce evidence from the witnesses it did call in relation to some of the allegations. The Claimant relied on the following passage in EB v BA [2006] EWCA Civ 132 para 52, in support of the contention that in such circumstances the claimant was not required to prove anything: ‘If an employer takes the stance adopted by the Respondent, namely "You prove it"− then claimants, particularly those with limited or no means, who challenge large corporations in cases of this kind would be at a great disadvantage. Such an approach may well render the reverse burden of proof provision of little or no use to a claimant.’[151]EB is a stage 2 case, and therefore was not authority for the proposition that an adverse inference must be drawn at stage 1 from the fact that an employer has not provided an explanation.[152]In relation to the position at stage 1 we agreed with the Respondent that the correct authority was the case of Efobi v Royal Mail Group Ltd [2021] ICR 1263 (SC), see paras 40-41. This held that no adverse inference can be drawn at the first stage from the fact that the employer has not provided an explanation. However it did not follow that no adverse inference of any kind can never be drawn at the first stage from the fact that the employer has failed to call the actual decision makers. It all depends on the context and particular circumstances. Relevant considerations would include whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the points on which the witness could potentially have given relevant evidence and the significant of those points in the context for case as a whole. Tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense. TIME LIMITS[153]Section 123 of the EA 2010 provides that: ‘(1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable. ….. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.’[154]The leading authority on the meaning of conduct ‘extending over a period’ (often referred to as a continuous act) is Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 (CA). This held that tribunals should focus on the substance of the complaints and whether the Respondent ‘was responsible for an ongoing situation or continuing state of affairs’. . It is clear from that case that it need not be the same discriminator nor the same cause of action.[155]In relation to continuing omissions, if there is no actual date where person has decided on the failure under section 123(3)(b), or there is no act which is inconsistent with the duty under section 124(4)(a), then the tribunal is required to identify a notional date from which time limits run: Kingston upon Hull City Council v Matuszowicz [2009] ICR 1170 (CA).[156]Time limits should be applied strictly in tribunals and there is no presumption that time will be extended. Tribunals have the ‘widest possible’ discretion to extend time under the Equality Act 2010: Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194. The length of, and reasons for, the delay and whether the delay had prejudiced the Respondent are highly relevant factors. In terms of reasons for the delay, tribunals have taken into account:156.1 Pursuing internal grievance procedures prior to issuing proceedings: Robertson v Post Office [2000] IRLR 804 (EAT).156.2 The claimant’s reliance on incorrect legal advice as to the limitation period: Chohan v Derby Law Centre [2004] IRLR 85. This factor has also been applied to non-legal and union advisors. There is no requirement that the tribunal has to be satisfied that there was a good reason for the delay, let alone that time could not be extended in the absence of an explanation of the delay from the claimant, although whether there was any explanation or apparent reason for the delay and the nature of any such reason were relevant matters to which the tribunal ought to have regard: Abertawe Bro Morgannwg University Local Health Board Morgan. DISCUSSION AND CONCLUSION Disability[157]The Respondent admits that at all material times Dr Turton was disabled within the meaning of section 6 of the Equality Act 2010 by reason of Asperger’s Syndrome (Autism Spectrum Disorder), Severe Complex Post Traumatic Stress Disorder and ADHD and that it was at all material times aware of those disabilities. Harassment related to disability (Equality Act 2010 section 26)[158]We dealt with the harassment allegations first, because under section 212 of the Equality Act, harassment is not a detriment. Therefore if harassment if found proven the direct discrimination claim must fail. Ms Woodman spread fabricated information about the Claimant in respect of false racist remarks which led to a student complaining and rumours circulating (issue 6.1.1). Ms Woodman fabricated that the Claimant had made racist comments about a student by saying words to the effect ‘Sharon doesn’t like you because you are a gypsy, and she doesn’t think gypsies should have an education’ (issue 6.1.6 (3.2.3))[159]We considered that the wording of issue 6.1.1 repeated and expanded on issue (6.1.6 (3.2.3)). We were not address separately on these allegations by either party so we have considered these two complaints as a single complaint (false racism allegation).[160]We have found that Ms Woodman did inform student C that Dr Turton had made a racist remark about her traveller heritage. We have found that this was a fabrication by Ms Woodman. We have also found that this resulted in the student complaining and the circulation of rumours that Dr Turton was a racist.[161]We consider that this conduct was unwanted by Dr Turton. She gave clear evidence as to how distressed she was about this allegation and that it resulted in a deterioration of her condition and being signed off work sick.[162]We considered that this was a deliberate act by Ms Woodman and done with the purpose of creating a hostile etc. environment. It was an attack on Dr Turton’s reputation and could, and indeed did, turn students against her. On the audio, we heard the distress of student C when she was telling her friend, she referred to being stressed out, crying and not sleeping: Student A audio 6. We also heard the shock of her friend and her comment that if Dr Turton had made the alleged comment ‘then it's fucking wrong’. It resulted in rumours circulating amongst students and former students. In the alternative Dr Turton clearly perceived it as creating a hostile etc. environment and we considered that it was objectively reasonable in all the circumstances for Dr Turton to perceive it as doing so.[163]In considering whether the unwanted treatment was related to Dr Turton’s disability, we considered whether there was ‘something more’ than the mere fact that Dr Turton has a protected characteristic. The fact that the treatment was unreasonable did not mean that it was done because of Dr Turton’s disability, it could just be bullying. We took into account that at this stage the question for us to answer was whether a tribunal could conclude that it was discrimination in the absence of an explanation by the Respondent such as to shift the burden of proof onto the Respondent.[164]We did not draw an adverse inference from Ms Woodman’s failure to provide positive evidence on this issue in her witness statement. We considered that this was probably the fault of the Respondent’s solicitors who only appeared to have drafted the statements shortly before this hearing. However we did draw an adverse inference from the following factors:164.1 That the Respondent had failed to disclose Mr Lampard’s investigation report and interview notes. Dr Turton’s previous solicitor had repeatedly sought specific disclosure of these documents and the Respondent solicitor had responded that it had forwarded this request to the college and was taking instructions. We considered it likely that the Respondent’s solicitor would be accurately reporting the actions that he was taking to address Dr Turton’s request. Therefore we concluded that the Respondent was aware of this request and no reason has been provided as to why this has not been disclosed. We considered that this, in conjunction with the other factors, was sufficient to draw an adverse inference.164.2 That Ms Woodman had made a gesture and negative comment in relation to a student with metal health conditions (paragraph 42.1).164.3 That Ms Peet had made a negative comment regarding a students mental health, that Ms Woodman was present and nodded (paragraph164.4 That we have found that Ms Woodman had subjected Dr Turton to other acts of harassment related to her disability (issues 6.1.4 and 6.1.6 (3.2.1)).[165]We therefore found that there were facts from which we could conclude, in the treatment was related to Dr Turton’s disability. The burden having shifted on to Respondent, Ms Woodman has not provided any explanation as to why she fabricated the racism allegation against Dr Turton. Indeed her evidence, which we have not accepted, was a denial that this was said by her. Instead she alleged that student C had informed her that another (unspecified) person had told her about the alleged comment that Dr Turton was supposed to have made. We have not accepted that evidence. Since the Respondent has failed to provide cogent evidence that the treatment was in no sense whatsoever on the grounds of disability, we find this complaint is well-founded and suceeds. Ms Woodman told students that the Claimant was greedy and wanted to keep all psychology treatment to herself (issue 6.1.2)[166]We considered that there is a typographical error and that the issue should have read psychology ‘teaching’ not psychology ‘treatment’.[167]Since we have not found that Ms Woodman told students that Dr Turton was greedy and wanted to keep all psychology teaching for herself this complaint is not well-founded and is dismissed. . Ms Woodman discussed the Claimant’s disabilities with students and told them that the Claimant had a ‘mental health’ problem (issue 6.1.3)[168]Since we have not found that Ms Woodman discussed Dr Turton’s disabilities with students and told them that Dr Turton had mental health problems this complaint not well-founded and is dismissed. On 21 April 2022 at around 4.45pm when the Claimant returned her chair to the staffroom she was shouted at by Ms Woodman and JMs Peet who tried to force her to communicate with them (issue 6.1.4)[169]During the hearing the date of this incident was identified as being the 21 April 2022 and not the 3 April 2022 (‘hello’ incident). The list of issues were amended.[170]We have found as a fact that on 21 April 2022 both Ms Peet and Ms Woodman shouted at Dr Turton and tried to force her to communicate with them. Of the two we considered that Ms Peet’s conduct was the more aggressive and persistent.[171]This was clearly unwanted conduct in that Dr Turton did not wish to socially interact with either Ms Peet or Ms Woodman because it caused her upset and distress. She had made this obvious on 20 April 2022, and complained about the 21 April 2022 incident the next day.[172]We considered that Ms Woodman and Ms Peet shouting ‘hello’ to Dr Turton was done with the purpose of creating a hostile etc. environment for Dr Turton. Ms Woodman and Ms Peet knew that Dr Turton did not wish to have any interaction because Mr Coyle had spoken to the team prior to Dr Turton’s return to work. Therefore we find it extraordinary that they thought it was appropriate to repeatedly say hello to Dr Turton on 20 April 2022 and saw fit to complain about it when Dr Turton obviously ignored them. Having been so obviously ignored, they then saw fit to repeat the behaviour the next day. This was despite Ms Peet being spoken to by Mr Coyle after the 20 April 2022 incident. Ms Bateman considered Ms Peet’s actions to be confrontation and we agree. We considered that the actions were done to humiliate Dr Turton. Ms Peet and Ms Woodman had shouted at her and sought to get her attention. Following the exchange Ms Peet had looked at her colleagues and commented that she was just trying to be ‘friendly’. Therefore she intended the exchange to be witnessed and to present Dr Turton as being unreasonable in front of her colleagues.[173]Alternatively, even if Ms Woodman and Ms Peet had not intended to create a hostile etc. environment it had that effect. Dr Turton was clearly distressed by the encounter and complained about it the next day to Mr Cotton and Ms Ockleford. Further it was reasonable in all the circumstances for her to consider it having that effect. Deliberately trying to force someone to socially engage when it is clear that they did not want to, even for a person without Dr Turton’s disabilities, is likely to have caused upset and distress. Even more so for a person with Dr Turton’s disabilities who finds social interaction difficult.[174]In considering whether the unwanted treatment was related to Dr Turton’s disability, we considered whether there was ‘something more’ than the mere fact that Dr Turton has a protected characteristic such that the burden of proof shifted onto the Respondent.[175]Again we did not draw an adverse inference from Ms Woodman’s failure to provide positive evidence on this issue in her witness statement, for the same reasons as above. However we did draw an adverse inference from the following factors:175.1 The failure to call Ms Peet to give evidence despite her being identified as a discriminator in this complaint. We took into account that Dr Turton’s previous solicitors had specifically asked on 11 March 2022 whether Ms Peet was going to be a witness. As with the request for specific disclosure they were informed that the Respondent’s solicitor was taking instructions, and therefore we conclude that the Respondent was fully aware of this request. To date no explanation has been provided by the Respondent as to why Ms Peet has not attended to give evidence. This, in conjunction with the other factors, was sufficient to draw an adverse inference.175.2 The failure of Mr Coyle to provide positive evidence on this issue in his witness statement. He was unable to explain why he had provided positive evidence on what had occurred on 20 April 2022 (despite not being present) and the impact that Dr Turton's behaviour had on her colleagues, but then not provided any evidence as to what occurred on 21 April 2022 (when he was present), or the impact on Dr Turton. We also took into account that when he did provide evidence in crossexamination, he sought to minimise what had occurred in front of him.175.3 That prior to this incident Ms Woodman and Ms Peet had been informed by Mr Coyle that Dr Turton did not want to socially interact with them and that this was due to her disability in particular ASD. Therefore we concluded that they knew that their conduct was likely to cause Dr Turton distress due to her mental health conditions.175.4 That Ms Woodman had made a gesture and negative comment in relation to a student with metal health conditions (paragraph 42.1).175.5 That Ms Peet had made a negative comment regarding a students mental health, that Ms Woodman was present and nodded (paragraph175.6 That we have found that Ms Woodman had subjected Dr Turton to harassment related to her disability (issues 6.1.1 and 6.1.6 (3.2.1)).[176]We therefore found that there were facts from which we could conclude, in the treatment was related to Dr Turton’s disability. The burden having shifted onto Respondent, Ms Woodman and Ms Peet have not provided any explanation as to why they shouted at Dr Turton and sought to force her to interact with them. Ms Peet did not attend to give evidence and Ms Woodman denied any recollection of this event. Since the Respondent has failed to provide cogent evidence that the treatment was in no sense whatsoever on the grounds of disability, we find this complaint is well-founded and suceeds. On 22nd June 2022 Richard Coyle tricked the Claimant into returning to work on the Maidstone Campus after she had told him she was not ready yet by messaging her to cover Maidstone as Ms Woodman and Ms Peet were running workshops at the Gillingham Campus. After the Claimant agreed to work he informed her that Ms Peet would be at the Maidstone Campus on Monday and would be coming in to the Claimant’s sessions say hello to the students (issue 6.1.5)?[177]We have found that on 22 June 2022, after Dr Turton had agreed to return to work on the Maidstone campus, Mr Coyle informed her that Ms Peet would be at the campus and will be coming into Dr Turton’s session to say hello to the students. However we did not find that Mr Coyle tricked Dr Turton into returning to work. This required a level of planning that we do not consider to be plausible. We considered that the most likely explanation was that after Dr Turton agreed to cover Maidstone, Mr Coyle informed the team and Ms Peet approached Mr Coyle to ask if she could attend Maidstone to meet her students. Whether this was deliberately provocative by Ms Peet is immaterial since this complaint is not against her. We considered that Mr Coyle did not manage this well, knowing that Dr Turton would not want to see Ms Peet. He could have told Ms Peet to arrange to see the students on a different day, or he could have discussed it with Dr Turton in a manner that would have allowed her to object or come up with solutions. However we did not consider that he tricked her, instead he informed her of Ms Peet’s intentions as soon as they were known to him. Therefore this complaint is not well-founded and is dismissed. In December 2021 Ms Woodman (another lecturer) would mock the Claimant’s disabilities by tapping her head to indicate that the Claimant had ‘mental problems’ (issue 6.1.6 (3.2.1)).[178]We have found as a fact that Ms Woodman did mock Dr Turton’s disabilities by tapping her head to indicate that Dr Turton had mental problems (head tapping incident). We found that this happened in November not December 2021 since the audio referred to by the parties during the hearing was dated 2 November 2001. We considered that tapping ones head whilst referring to someone’s memory problems was pointed and a reference to Dr Turton’s mental health. Even without the head tapping (which of course is not conveyed by an audio tape) the reference to Dr Turton’s memory was a personal and negative comment to make to students about another member of the teaching staff and their capability as a teacher.[179]We considered that it was unwanted conduct, it was not done with kindness or with any explanation but to generate laughter at Dr Turton’s expense, which it did.[180]We considered that this comment and action had the purpose of creating a hostile etc. environment in that it undermined Dr Turton’s position and diminished her authority in front of her students. We also took into account that the comment was made in the context of a series of negative comment about Dr Turton to her students, this was not a one-off attack in her character. Even if that was not the purpose of the comment, we considered that it had that effect. Dr Turton gave evidence that she was distressed about the conduct and considered it to be mocking her. It was reasonable for her to perceive this action as mocking, since it was said and done to get a laugh. We took into account that this was how it was interpreted by student A.[181]In considering whether the unwanted treatment was related to Dr Turton’s disability, we considered whether there was something more than the fact that Dr Turton has a protected characteristic. We noted that Ms Woodman had made an explicit reference to Dr Turton’s memory. We considered whether Dr Turton’s evidence that she had suffered memory loss resulting from an RTA as well as autism and PTSD, meant that Ms Woodman was only referring to memory loss caused by an accident unconnected to her pleaded disabilities. We considered that both interpretations were possible and that only Ms Woodman could explain what was in her mind when she made the comment and gesture. However at stage 1 we were only being required to consider whether we could conclude that the reason was the protected characteristic not that it was the reason. Further, we did not consider that the fact that Ms Woodman made inappropriate comments about other members of staff was fatal to Dr Turton’s case. The other member of staff was Ms Bateman who also had a hidden disability, PTSD.[182]Again we did not draw an adverse inference from Ms Woodman’s failure to provide positive evidence on this issue in her witness statement, for the reasons stated above. However we did draw an adverse inference from the following factors:182.1 That it was a comment made to Dr Turton’s class who were aware that she had autism.182.2 That tapping ones head is a well recognised gesture for referring to mental health and it was how the two students interpreted it when they reported it to Mr Coyle.182.3 That Ms Woodman had made a gesture and negative comment in relation to a student with metal health conditions (paragraph 42.1)182.4 That Ms Peet had made a negative comment regarding a student’s mental health, that Ms Woodman was present and nodded(paragraph182.5 That we have found that Ms Woodman had subjected Dr Turton to harassment related to her disability in relation to issues 6.1.1 and 6.1.4).[183]We therefore found that there were facts from which we could conclude, in the treatment was related to Dr Turton’s disability. Therefore the burden of proof had shifted onto the Respondent to provide an explanation. Ms Woodman has failed to do so, she did not address this issue at all in her statement, we considered her evidence before us to be evasive, she failed to provide a full account of why she was making comments about Dr Turton’s memory and why she tapped her head in connection with those comments. Since the Respondent has failed to provide cogent evidence that the treatment was in no sense whatsoever on the grounds of disability, we find this complaint is well-founded and suceeds. Dan Cotton stated that a student had not been forthcoming during a meeting, when in fact they had been. Dan Cotton falsified this recollection (issue 6.1.6 (3.2.2)).[184]We have not found as a fact that Mr Cotton said that students had ‘not been forthcoming’ in fact he said that he ‘did not think the students were very forthcoming’. This is not just splitting hairs over the words used, but also changes the context within which this comment was made. Further, prior to making this comment in the same meeting Mr Cotton had accepted that Mr Coyle had informed him of the head tapping, which was the only specific example of something said or done in relation to Dr Turton’s disability that the students provided to Mr Coyle at the meeting.[185]We also took into account that Mr Cotton was not at the meeting with the students on 4 January 2022, so he could only convey to Dr Turton what he had been informed by Mr Coyle. He specifically stated that it was his ‘understanding’. Therefore he was not ‘falsifying’ any ‘recollection’ of what the students had said because he was not there. Nor was he falsifying his understanding, since what he said to Dr Turton on 22 April 2022 was consistent with what he had written on 5 January 2022. This was based on the summary provided by Mr Coyle the evidence provided by the students ‘was different from his expectation of what the student would provide’.[186]Therefore we did not find that Mr Cotton had ‘falsified this recollection’ when he said that the students had not been very forthcoming. Therefore this complaint is not well-founded and is dismissed. The Respondent stopped the Claimant from touching and marking students’ work and barred the students from asking the Claimant questions (issue 6.1.6 (3.2.4)).[187]Dr Turton has not identified when the Respondent had stopped her from marking students’ work. However the Respondent has admitted that it did so, and we have found that this occurred on 16 February 2022 and 24 February 2022. This was during a period that Dr Turton was signed off work sick and the Respondent was in receipt of student complaints about the disruptive nature of Dr Turton’s absence to their classes.[188]We accepted that this was unwanted conduct from Dr Turton’s point of view, however we did not consider that the treatment was sufficiently serious to constitute harassment. We did not consider that Dr Turton being stopped from marking students’ work whilst she was signed off sick had the purpose of violating Dr Turton’s dignity or creating a hostile etc. environment for her. Nor did we consider it reasonable for Dr Turton to view it as having that effect. We considered it reasonable that staff who are signed off sick be asked not undertake any work and for their work to be reassigned. This would be standard employer practice. We noted that on 6 February 2022 Dr Turton had informed the respondent that she was unable to continue with marking whilst off sick. Further there had been a discussion with Dr Turton on 28 February 2022 and it was agreed that she not mark unit 3 on her return to work because she was moving on to unit 4.[189]In relation to the other limb of this complaint, whilst we have found that on 8 March 2022 Mr Coyle told Dr Turton to stop answering questions from students in relation to unit 3, Dr Turton had adduced no evidence that students were ‘barred’ from asking her questions. In any event, we considered that being told to not answer questions from students in relation to a unit that had been transferred to another member of staff did not have the purpose of violating Dr Turton’s dignity or creating a hostile etc. environment. Nor was it reasonable for Dr Turton to view it as having that effect. It was appropriate to ask Dr Turton not to answer students’ questions and direct those questions to the member of staff doing the marking in order to ensure consistency. Particularly in the context of a conflict between members of the team and professional differences in approach to the subject matter. The Respondent was not stopping Dr Turton from answering student questions in general or in relation to the unit that had been assigned to her on her return to work which was unit 4.[190]Since we have found that the treatment complained of was not sufficiently serious to constitute harassment, Dr Turton has failed to prove primary facts and therefore this complaint is not well-founded and is dismissed. Ms Woodman told students that she was invited to teach psychology at the Respondent due to the Claimant not being able to cope with the workload because of her disabilities (issue 6.1.6 (3.2.5)).[191]Since we have not found that Ms Woodman told students that she was invited to teach psychology because Dr Turton was not able to cope with the workload because of her disabilities, this complaint is not well-founded and is dismissed. The Respondent changed the Claimant’s workbook and assignment brief to students (issue 6.1.6 (3.2.6)).[192]It was not disputed that there were changes made to the unit 3 workbook.[193]We accepted that the changes to the workbook was unwanted conduct from the point of view of Dr Turton. However we did not consider that those changes were serious enough to constitute harassment. The changes were minor in nature in order to remove repetition and make it clearer for students to follow. Dr Turton had accepted that there had been ‘not many changes’ during her meeting with Mr Cotton on 30 March 2022. Further we did not consider it reasonable for Dr Turton to consider that it had the effect of creating a hostile etc. environment, since we have found that it was not unusual to change workbooks and that it was part of a collaborative process. Therefore this limb of this complaint is not well-founded and is dismissed.[194]Dr Turton’s statement under the heading ‘”management” changed the assessment workbook - LOI 3.2.6..’ only referred to the unit 3 workbook changes and not any changes to the assignment brief. In evidence, Dr Turton did not dispute Ms Woodman’s evidence that the unit 3 assignment was not changed. This limb of the complaint is therefore not well-founded and is Direct Disability Discrimination (Equality Act section 13) In December 2021 Ms Woodman (another lecturer) would mock the Claimant’s disabilities by tapping her head to indicate that the Claimant had ‘mental problems’ (issue 3.2.1).[195]We have concluded that this is an act of harassment, therefore the complaint of direct discrimination is dismissed. Dan Cotton stated that a student had not been forthcoming during a meeting, when in fact they had been. Dan Cotton falsified this recollection (issue 3.2.2).[196]For the reasons set out in paragraphs 184-5, we have found as a fact that Mr Cotton did not say that the student had ‘not been forthcoming’ nor that he ‘falsified this recollection’, therefore this complaint is not well-founded and is Ms Woodman fabricated that the Claimant had made racist comments about a student by saying words to the effect ‘Sharon doesn’t like you because you are a gypsy, and she doesn’t think gypsies should have an education’ (issue 3.2.3).[197]We have concluded that this is an act of harassment, therefore the complaint of direct discrimination is dismissed. The Respondent stopped the Claimant from touching and marking students’ work and barred the students from asking the Claimant questions (issue 3.2.4).[198]We have found as a fact that the Respondent did stop Dr Turton from marking students work. We have not found that students were ‘barred’ from asking Dr Turton questions, but did find that Dr Turton was asked to refer questions in relation to unit 3 to Ms Peet.[199]We did not consider that Dr Turton was subjected to less favourable treatment. We consider that Dr Turton was treated no differently from a comparator in the same or not materially different circumstances. In relation to marking this would be a teacher who was signed off sick. The definition of being signed off sick is that the employee is not expected to continue to work during that period and that if necessary their work would be assigned to another. Dr Turton has provided no evidence to suggest that she was treated any differently from any other teacher signed off sick. Therefore this claim is not well-founded and is[200]In relation to being told to not answer student questions the comparator would be a teacher returning from sick leave whose unit had been transferred to another member of staff during their absence. We noted that Dr Turton was only being asked not to answer questions in relation to unit 3 and to focus on unit 4. We considered that if a unit had been transferred to another member of staff during sickness, or indeed for any other absence, then it would be reasonable to ask the returning member of staff to forward any questions to the person who had taken over the unit to ensure consistency. This would be even more the case where there was a difference in approach and lack of cooperation between members of the team. Dr Turton has failed to prove that she was treated less favourably than an actual or hypothetical comparator. Therefore this claim is not well-founded and is dismissed. Ms Woodman told students that she was invited to teach psychology at the Respondent due to the Claimant not being able to cope with the workload because of her disabilities (issue 3.2.5).[201]Since we have not found that Ms Woodman told students that she was invited to teach psychology because Dr Turton was not able to cope with the workload because of her disabilities this complaint is not well-founded and is dismissed. The Respondent changed the Claimant’s workbook and assignment brief to students (issue 3.2.6).[202]It was not disputed that there were changes to the unit 3 workbook. For the reasons set out above at paragraph 194 we do not find that the Respondent changed Dr Turton’s assignment brief.[203]In relation to the changes to the unit 3 workbook, we did not find that Dr Turton was subjected to less favourable treatment. We considered that Dr Turton was treated no differently from a comparator in the same or not materially different circumstances. This was someone who was signed off sick and whose teaching had been transferred to another member of staff. We considered that it was reasonable for that member of staff to make changes to the workbook for the benefit of students. Therefore this complaint is not well-founded and is The Respondent subjected the Claimant to a redundancy procedure (issue 3.2.7).[204]It was not disputed that the Respondent had subjected Dr Turton to a redundancy process in that they had put her on notice that she was at risk of redundancy and invited her to attend a redundancy selection interview.[205]The Respondent submitted that this was not less favourable treatment because Ms Woodman and Ms Peet were also subjected to the same redundancy process. Ms Bateman’s post was ring-fenced because she was a specialist lecturer in biology and she needed to be retained to enable the Respondent to continue to run the course, but the Respondent could run the course without psychology units. Dr Turton did not dispute that there was a genuine redundancy situation in that the numbers of students had fallen, but did dispute the decision to put her in the pool of staff at risk of redundancy. This was because like Ms Bateman she was a specialist lecturer employed full time to deliver a specialist course. Dr Turton submitted that it was not true that the course could be run without the psychology units and that a member of staff from another department was used to teach her course in the next 2022/23 academic year.[206]When considering whether the placement of Dr Turton in the ‘at risk’ pool was less favourable treatment we first considered who was the correct comparator. We have decided that it was not Ms Peet and Ms Woodman who were both generalists. This was a materially different circumstance. The Respondent had not adduced any evidence other than the evidence of Ms Ockleford, who was not involved in the decision. She was unable to explain the rationale for including Dr Turton and not Ms Bateman.[207]We considered that the correct comparator was Ms Bateman, a specialist lecturer employed to deliver a specialist course, just like Dr Turton. Dr Turton was treated less favourably than Ms Bateman in that Dr Turton was placed in the selection pool and Ms Bateman was not. We then went on to consider whether it was fatal to Dr Turton’s claim that Ms Bateman was also disabled since she had PTSD and COPD. We concluded that it was not, since she did not share the disabilities of Asperger’s Syndrome (Autism Spectrum Disorder), ADHD and Severe Complex Post Traumatic Stress Disorder. We consider these disabilities to be qualitatively different from the disability of PTSD and COPD. Not all disabilities are the same as was recognised by the Respondent’s policy on support and guidance for non-visible disabilities, specifically referring to autism but not PTSD.[208]In considering whether the less favourable treatment was because of Dr Turton’s disability, we considered whether there was ‘something more’ than the mere fact that Dr Turton has a protected characteristic such that the burden of proof shifted onto the Respondent. We drew an adverse inference from the following factors:208.1 That Dr Turton’s previous solicitors had specifically asked on 11 March 2022 whether Mr Cotton and Ms Le Poidevin were going to be witnesses and if not why. As with the request for specific disclosure, the Claimant’s solicitor had repeated this request on a number of occasions and the Respondent’s solicitor had informed them that he was taking instructions. Therefore we concluded that the Respondent was fully aware of this request. To date no explanation has been provided by the Respondent as to why these witnesses did not attend to give evidence. This, in conjunction with the other factors identified below, was sufficient to draw an adverse inference.208.2 That the Respondent had disclosed no documents relating to the decision to include Dr Turton in the redundancy pool.208.3 Ms Woodman had been recruited for the academic year 20/21/22 because student numbers had increased. A potential alternative option would be to make only her post redundant now that student numbers had decreased.208.4 At the 30 March 2022 meeting Mr Cotton had referred to the difficulty in covering Dr Turton’s sickness absences and that he did not have ‘2 Sharons’ [sic] in the department’. This suggested that the Respondent did need a psychologist specialist to deliver the psychology course.208.5 There is considerable evidence that Mr Cotton, one of the decisionmakers, considered Dr Turton to be difficult. See for example his email of 20 January 2022 referring to Dr Turton’s ‘continued unreasonable behaviour’, and email of 21 March 2022 stating, ‘we literally cannot carry on like this…’ and his email of the 22 April 2022 requiring Dr Turton to engage with staff on the Access team. On 3 and 7 March 2022 Ms Le Poidevin had expressed views about Dr Turton’s state of mind whilst she was on sick leave and requested that Dr Turton not to return to work, despite there being no medical evidence to support a suspension on these grounds. These internal emails suggest that the two decisionmakers may have seen the redundancy situation as an opportunity to dismiss Dr Turton.[209]We therefore found that there were facts from which we could conclude, in the treatment was because of Dr Turton’s disability. The burden having shifted onto Respondent, Mr Cotton and Ms Le Poidevin have not provided any explanation as to why they included Dr Turton in the ‘at risk’ pool. Since the Respondent has failed to provide cogent evidence that the treatment was in no sense whatsoever on the grounds of disability, we find this complaint is well-founded and suceeds. The Claimant was dismissed by way of voluntary redundancy (issue 3.2.8).[210]It was not disputed that Dr Turton decided to take voluntary redundancy. The Respondent submitted that this was not a dismissal but termination by mutual consent. We were not referred to any caselaw in relation to this issue. We considered that on the circumstances of this case voluntary redundancy was a dismissal by the employer in that:210.1 Dr Turton loved her job and initially (once she had properly read it) responded positively to the grievance outcome and recommendations. She was confident that the suggestions would resolve the issues and wanted to put the whole terrible mess behind her. She wrote to Ms Peet and Ms Woodman asking them not to pressurise her to be sociable and suggested that they read the hidden disabilities’ policy. Therefore something happened to change her mind.210.2 We found that the first thing that happened was the failure by the Respondent to put in place external mediation and training on hidden disabilities. We accept that the Respondent contacted Dr Turton about this on 15 June 2022, immediately following the grievance outcome. However, there was no further communication with Dr Turton about implementing this recommendation despite her requests that this be done to Mr Coyle on 22 June 2022, Ms Ockleford on 22 June 2022 and Mr Cotton on 24 and 25 June 2022. The lack of response and urgency was particularly surprising given that Mr Hyland had specifically recommended that mediation take place before the summer break if possible. Further this inaction occurred against the background where recommendations for mediation and / or training on hidden disabilities made at the wellbeing meetings on 21 January 2022 and 28 February 2022 and by Mr Lampard in his investigation report in or around March 2022 had not been implemented.210.3 The second thing that happened was the mishandling of Ms Peet's request to attend Maidstone on a day that Dr Turton had agreed to be on campus. Whilst we have concluded that Dr Turton was not tricked by Mr Coyle into having social interaction with Ms Peet, we do consider that this was poorly managed, and was another example of the Respondent (both Ms Peet and Mr Coyle) failing to take Dr Turton’s request to have no social interaction until the mediation had taken place seriously.210.4 Finally Dr Turton received notice that she was ‘at risk’ of redundancy. We note that she only sought voluntary redundancy after receiving this notice. Whilst there is evidence that she was considering resigning prior to receipt of this notice, and was concerned about her health she had not taken any active steps to do so. We consider that being put at risk of redundancy was the final straw. This was not an innocuous act since it was an act that we have found to constitute direct disability discrimination. Further, it came on top of the three proven acts of harassment and a continuing failure to make reasonable adjustments in relation to social interactions.[211]We considered that the dismissal was direct disability discrimination for the same reasons that we have found putting Dr Turton at risk of redundancy was direct discrimination. Reasonable Adjustments (Equality Act 2010 sections 20 & 21) Requiring all staff to meet and interact with each other at both intended and incidental meetings (issue 5)?[212]The Respondent in his oral submissions accepted that this was a practice based on Mr Cotton’s email dated 22 April 2022. Although not quite the pleaded PCP he did not pursue this point.[213]The Respondent did not dispute that this PCP put Dr Turton at a substantial disadvantage compared to someone without her disabilities in that she found social interactions difficult and at times distressing.[214]The Respondent did not dispute that it knew that Dr Turton was likely to be placed at this disadvantage. Would it have been a reasonable step for the Respondent to allow and organise for the Claimant to work separately from Ms Woodman and Ms Peet as much as possible? (issue 5.4.1).[215]Dr Turton initially requested that the Respondent take this step by email to Mr Coyle on 28 March 22, and then to Mr Coyle and Mr Cotton on 21 April 2022 and Mr Cotton and Ms Ockleford on 22 April 2022. On 22 April 2022 Mr Cotton refused this request.[216]We considered that this step would have had a real prospect of removing the disadvantage since it would have limited the contact between Dr Turton and Ms Woodman and Ms Peet that was causing her distress.[217]We consider that it was reasonable for the Respondent to have to take this step for the period that the investigation was ongoing and until the recommendations (including mediation and awareness training) were implemented. Whilst this would not have been reasonable as a permanent step, as a temporary one of relatively short duration it was in our view feasible. We took into account that the Respondent had two campuses and therefore there was no need for Ms Woodman and Ms Peet to be scheduled to work on the same campus as Dr Turton. We also took into account that Dr Turton worked at home for part of the week, therefore contact would only have to be managed for those days when Dr Turton was on campus. Further in his evidence Mr Coyle agreed that this was something that could be done.[218]We also took into account that the adjustment sought was ‘as much as possible’, therefore the Respondent was not being required to guarantee no contact as suggested by the Respondent in his submission. However a more understanding and sympathetic approach would have made Dr Turton feel more supported, it would have significantly reduced the possibility of interaction and therefore reduced at least one of the triggers causing Dr Turton’s distress.[219]We did not consider that Dr Turton’s position was confusing and that there was a contradiction between her request for no contact but then feeling isolated when working at home. She was only requesting this step be taken in relation to Ms Woodman and Ms Peet, not with persons in general.[220]We considered that the Respondent did fail to take this step in that:220.1 On 21 April 2022 Mr Coyle failed to intervene when Ms Woodman and Ms Peet approached Dr Turton to force her to interact with them.220.2 On 22 April 2022 Mr Cotton instructed Dr Turton to engaged with staff in the Access team when on site and informed her that he was not in a position to instruct staff not to greet her or interact with her.220.3 On 14 and 20 June 2022 Dr Turton asked Mr Coyle to speak to Ms Woodman and Ms Peet about not pressuring her to be social and to read the hidden disabilities policy, his response was that she write to them herself.220.4 On 22 and 23 June 2022 Mr Coyle failed to put in place measures to prevent Ms Peet entering Dr Turton’s classroom.[221]The fact that the Respondent had made other adjustments is no defence to its failure to implement this reasonable step. Arranging a different method of communication for the Claiamnt with Ms Woodman and Ms Peet so that she did not have to face them when her conditions may be exacerbated (issue 5.4.2).[222]Dr Turton confirmed that the alternative communication methods were e-mail, text, letter, anything that avoided face to face conversation. She had requested that the Respondent take this step by email to Ms Ockleford on 22 April 2022.[223]We considered that this step had a real prospect of removing the disadvantage since it would have limited the contact between Dr Turton and Ms Woodman and Ms Peet which was exacerbating her condition for the reasons set out above.[224]We consider that it was reasonable for the Respondent to have to take that step for the period that the investigation was ongoing and until the recommendations (including mediation and awareness training) were implemented. Whilst this would not have been reasonable as a permanent step as a temporary one of relatively short duration it was in our view feasible. Again in evidence Mr Coyle agreed that this was something that could be done.[225]We considered that the Respondent failed to take this step for the same reasons as above. Discrimination arising from Disability (Equality Act 2010 section 15) Subjecting the Claimant to an investigation into a post made on Facebook seeking information about rumours circulating (issue 7.1.1).[226]The Respondent did not dispute that subjecting Dr Turton to an investigation was unfavourable treatment.[227]The Respondent also did not dispute that the following things identified in the List of Issues were something that arose in consequence of Dr Turton’s disability:227.1 The Claimant became very distressed.227.2 The Claimant needed to seek information and answers.227.3 The Claimant’s conditions (ASD, ADHD and PTSD) and their symptoms were exacerbated.227.4 The Claimant had episodes of atrial fibrillation and related sickness absence between about 20 June and 23 June 2022.227.5 The Claimant took voluntary redundancy. However, we did not consider the last two to be relevant to this issue, because these post-dated the unfavourable treatment.[228]The Respondent also did not dispute that the unfavourable treatment was caused by something arising out of Dr Turton’s disability.[229]Dr Turton did not dispute the following legitimate aims relied on by the Respondent:229.1 Furthering the Respondent’s duty of care to its current and former students and their families.229.2 Avoiding inappropriate content on social media related to the Respondent.229.3 Preventing the Respondent’s employees from engaging in social media activity that was likely to diminish the Respondent’s reputation or cause distress to those to whom the Respondent owed a duty of care.[230]Therefore, the sole issue in dispute and for us to determine was whether conducting the investigation was a proportionate response.[231]We found that Dr Turton’s Facebook post was contrary to the social media policy in that:231.1 Dr Turton was actively pursuing a relationship with ex students. The post was directed at former students, was conveying information and seeking a response from them. Whilst we noted that staff were encouraged to maintain contact with former students, for example to invite them in to talk to current students, we considered that Dr Turton’s post was qualitatively different. It was for personal reasons rather than professionally related outreach work.231.2 Dr Turton was engaging in activities that had the potential to bring the college into disrepute. Whilst we noted that it was a ‘private’ post to a limited number of Facebook friends, once posted Dr Turton had no control over how that post was received or distributed. Further whilst she did not identify the Respondent by name, it was obvious that the reference to ‘work’ referred to her teaching role at the college and not her other role as external examiner. After all her message was directed at ex-students of the college in relation to an investigation occurring at the college. She intended them to know which workplace she was referring to.231.3 Dr Turton was commenting on work-related matters since she referred to and commented on a situation ‘work’ involving a ‘lecturer’. Further Ms Woodman was identifiable by the reference to a ‘newcomer’ (Ms Woodman being the only newcomer on the Access team). Dr Turton referred to that member of staff ‘doing despicable things’, telling ‘a vulnerable student a bunch of lies’. She also stated that ‘sadly, the people that I work with are not always as intelligent as one might expect’, which is a general comment on her colleagues.[232]Therefore we agreed with the Respondent that the post was an inappropriate use of social media and brought the Respondent into disrepute. It was sufficiently serious to constitute gross misconduct and therefore required a disciplinary investigation. This was an appropriate and necessary means of achieving the legitimate aims set out above. We considered whether something less discriminatory could have been done instead, such as informal action. We considered that the matter would need to be investigated prior to any decision as to what was the appropriate action to take. This is because it was only by conducting an investigation that Dr Turton’s intentions and understanding of the social media policy could be explored.[233]Dr Turton’s case was that the Respondent should not have conducted a disciplinary investigation due to her state of mind at the time and it was put in cross examination that Dr Turton was at ‘breaking point’. In fact the evidence before us did not support that contention. The Respondent had specifically sought OH advice as to whether Dr Turton was fit to attend the disciplinary and grievance investigation meetings and OH in its report dated 30 March 2022 had stated that she was. Further the Respondent put in place extra support for Dr Turton, in that during the investigation meetings it took additional breaks and checked with Dr Turton that she was able to continue. It is highly relevant that at the time Dr Turton did not ask for the investigation to be halted, nor was her presentation such as to require the investigation to be halted. Further she thanked Ms Ockleford for her support in her email of 15 June 2022.[234]Having conducted his investigation, Mr Hyland took Dr Turton’s disability into account by deciding that the matter was not gross misconduct and by recommending informal action only. We concluded that Respondent’s actions was a proportionate response in all the circumstances. Therefore this complaint is not well-founded and is dismissed Failing to make the social media policy clear to the Claimant (issue 7.1.2).[235]The Respondent did not dispute that it had failed to make the social media policy clear to Dr Turton.[236]The Respondent also did not dispute that the following things identified in the List of Issues arose in consequence of Dr Turton’s disability:236.1 The Claimant became very distressed.236.2 The Claimant needed to seek information and answers.236.3 The Claimant’s conditions (ASD, ADHD and PTSD) and their symptoms were exacerbated.236.4 The Claimant had episodes of atrial fibrillation and related sickness absence between about 20th June and 23rd June 2022.236.5 The Claimant took voluntary redundancy. For the same reasons as above we did not consider the last two to be relevant.[237]However we have found that the unfavourable treatment does not follow from any of the consequences relied upon. There was no evidence to suggest that the social media policy was not made clear to Dr Turton because she was distressed, needed to seek information and answers or because her conditions and symptoms were exacerbated etc. It seems to us that this complaint is the wrong way round, that the failure to explain the policy led to those consequences but was not caused by them. Therefore this complaint is not well-founded and is dismissed. Time limits (Issue 1)[238]The following acts happened before 30 March 2022:238.1 The head tapping incident in or around December 2021 ((issue 6.1.6 (3.2.1)).238.2 The false racism allegation around 20 January 2022 ((issue 6.1.1 and 6.1.6 (3.2.3))[239]We considered that these were part of conduct extending over a period of time since they were connected with the in-time act of harassment that occurred on 21 April 2022 (‘hello’ incident). It involved the same person (Ms Woodman), concerned the same cause of action (harassment), and were part of a continuous course of behaviour of towards Dr Turton by Ms Woodman (and Ms Peet) which sought to undermine and humiliate her.[240]Alternatively, we considered that it would be just and equitable in all the circumstances to extend time in relation to these two acts. The period of time was relatively short of 2 to 4 months. We have seen no evidence that the Respondent was prejudiced by this relatively short delay. In terms of the reason for the delay, Dr Turton in her statement referred to her disability and that she was having a nervous breakdown. We did not consider that this was a sufficient reason on its own but it we took it into account. We also took into account that Dr Turton stated in her evidence that she had contacted ACAS who had advised her to go down the grievance route first before submitting a claim. Finally, we took into account that Dr Turton had succeeded on the merits and therefore would be prejudiced if these two complaints were dismissed for being out of time. Taking all these factors into account, we considered it was just and electable to extend time limits in her favour.[241]In relation to the omission of the failure to make reasonable adjustments. We found that the Respondent ‘decided on the failure’ on 22 April 2022, when Mr Cotton informed Dr Turton that he would not agree to her request that staff not greet a colleague. Therefore, this complaint within the three-month time limit.
CONCLUSION
[242]We concluded that.242.1 three complaints of harassment related to disability were well-founded and succeeded (the head tapping incident, the false racism allegation and the ‘hello’ incident);242.2 two complaints of direct disability discrimination are well-founded and succeeded (putting Dr Turton at risk of redundancy and her dismissal by way of voluntary redundancy).242.3 the failure to make reasonable adjustments in relation to social interaction is well-founded and succeded;242.4 all other complaints we not well found and were dismissed REMEDY JUDGMENT The unanimous Judgment of the Tribunal is that: The respondent is ORDERED to pay the Claimant the following sums as compensation for the proven acts of discrimination: Past loss of earnings of £53,551.47. Future loss of earnings of £27, 942.87. Injury to feelings of £29,000. Personal injury of £8,000. Aggravated damages of £5,000.[6]Interest on past loss of earnings, injury to feelings, personal injury and aggravated damages totalling £15,396.61. Sum for grossing up of £38,266.33.[8]We also heard from Dr Singh (the joint expert) having granted the respondent’s application for the reasons provided orally at the hearing. The respondent has agreed to pay the cost of Dr Singh’s attendance.[9]Following the conclusion of the evidence we heard oral submissions which supplemented those provided in writing. Judgment was reserved.[10]On 18 November 2025 the parties were sent a draft embargoed judgment for consideration. We have taken into account the parties’ corrections in finalising this judgment. REMEDY ISSUES[11]The remedy issues were as set out in the CMO of the 18 April 2023: pg L/63- 68. They are reproduced in Appendix A. THE LAW[12]There was no real dispute between the parties as to the correct law to be applied. The Respondent provided detailed legal submissions (which were agreed by the Claimant) and which we adopted.[13]Under the Equality Act 2010 section 124(6) and 119(2) any award of compensation is to be assessed under the same principles as apply to torts. The central aim is therefore to put the claimant into the position, so far as is reasonable, that she would have been had the statutory tort not occurred. Dr Turton is entitled to be compensated for all harm caused directly by the act of discrimination, whether or not it was reasonably foreseeable: Essa v Laing Ltd [2004] IRLR 313. FINDINGS OF FACTS, DISCUSSION AND CONCLUSION The joint expert[14]Dr Singh is a consultant psychiatrist who has considerable experience of assessing individuals with autism, Complex PTSD and ADHD. She was jointly instructed by the parties and was provided with the liability judgment and Dr Turton’s medical records. She conducted a consultation with Dr Turton on 1 and 8 July 2025. She produced a report and answered detailed written questions from both parties: pgs 133-172 (report) and 178-201 (questions). She also attended this hearing to give evidence.[15]Dr Singh told us that she based her expert opinion not just on what Dr Turton had told her but also her demeanour and behaviour, and using her own clinical experience and assessment. She confirmed that it is possible to discern whether a subject was exaggerating their symptoms and stated that in Dr Turton’s case there was no evidence of this. We considered her to be a helpful and knowledgeable expert. Apportionment[16]Dr Turton has pre-existing conditions of Asperger’s Syndrome (autism spectrum disorder), severe complex post-traumatic stress disorder and ADHD. Further Dr Turton has a history prior to the events in question, of depression and anxiety.[17]At the liability hearing we found that some of the acts, but not all the acts, that Dr Turton relied upon proven (Judgment). Therefore it was a live issue before us as to whether, and to what extent, the harm that has been caused to Dr Turton was attributable to the respondent’s wrongdoing: BAE Systems (Operations) Ltd v Konczak [2017] EWCA Civ 1188. The burden is on the respondent to raise the issue of apportionment.[18]One of the first questions before us was whether the harm was divisible. Dr Turton described the impact of her treatment at work as being cumulative and that it was not possible for her to consider each act of discrimination and those acts which were found not to be discrimination separately, not least because she has Complex PTSD which meant every time it was triggered the past trauma was also triggered.[19]Dr Singh was clear in her report and her oral evidence that her conclusions about the harm caused would remain the same even if only the upheld findings of harassment and failure to make reasonable adjustments had occurred, as these were substantial stressors in themselves: pg 190. Further Dr Singh stated, in response to panel questioning that there was no rational basis for apportioning harm in this case since it was all “part of the continuum which could not be separated”.[20]The respondent did not seek to persuade us that the harm was divisible stating that this was a matter for the tribunal. Based on the evidence provided by Dr Singh we find that the injury was not divisible and therefore there is to be no apportionment. When did Dr Turton intend to retire?[21]Dr Turton was 62 years old at the date of her voluntary redundancy on 31 August 2022. She stated in her schedule of loss that she would have remained at work up to her 71st birthday on 17 June 2031. In evidence she informed us that this would have coincided with paying off her mortgage and was the age that her father had retired from teaching. In her original liability statement, Dr Turton had stated that she had planned to work full-time until retirement age, and then like her father part-time until she was 70 years of age [para 91]. Although she later stated that she planned to work until she was 71 years [para 98]. Faced with these inconsistent accounts, we considered that her account in her liability statement at paragraph 91 to be most accurate, and find that she intended to retire when she was 70 years old. Further that she would have moved to part-time working from state retirement age, which for Dr Turton was 17 September 2026 (66 years old): pg 231. We did not accept that she would have had to continue to work full time after this date for financial reasons. We noted that on 22 February 2022 Dr Turton had made a capital payment in order to reduce her mortgage term (pg 230) and considered that had she remained employed by the respondent she would have continued to pay off her mortgage early. Further her particulars of claim had claimed future loss of earnings of only 4 years and 1 month and her original schedule of loss had claimed future loss of earnings of 96 weeks, both of which equated to loss of full-time earnings up to the date of state retirement age: pgs L/23 and 1513. Whether Dr Turton would have retired before her 70th birthday due to ill-health[22]Dr Turton has the following longstanding neurodevelopmental and traumarelated conditions: pg 161. a) Complex Post-Traumatic Stress Disorder (C-PTSD); b) Attention-Deficit/Hyperactivity Disorder (ADHD); c) Generalised Anxiety Disorder; d) Moderate Major Depressive Disorder; and f) Chronic musculoskeletal pain and post-operative recovery – including fibromyalgia-like symptoms and recent left knee replacement. Dr Turton accepted that she has had these conditions for most of her adult life. They had affected her at work and in her personal life (see remedy statement paras 4-9). However she stated that before she had always been able to bounce back.[23]Dr Singh concluded that on the balance of probability it was unlikely that Dr Turton’s employment would have ceased by reason of ill health if the proven acts of discrimination had not occurred: pg 167 [report para 112]. Dr Turton’s conditions were well-managed and did not prevent her from working effectively as a psychology lecturer for many years: pg 168 [report para 114-116]. In response to written questions by the respondent, Dr Singh acknowledged that there had been significant episodes of anxiety and depression prior to 2021. However the “critical medical distinction” was that prior to December 2021 these episodes were “episodic and recoverable allowing Dr Turton to return to and sustain employment”: pg 196. Dr Singh concluded that it was medically likely that Dr Turton would have been able to continue in work with the appropriate adjustments and that the discrimination was the decisive factor in her prolonged incapacity over and above her background predisposition: pg 193.[24]Whilst Dr Turton may have remained medically fit to remain at work until retirement, we noted that she had had significant periods of sickness absence during her employment with the respondent. Excluding sickness absence, which was connected to the discriminatory acts, she had been signed off sick for 44 days in 2018, and 48 days in 2021, albeit in other years it was much less. It was therefore likely that over the next 8 year period Dr Turton would have had at least two significant periods of absence. We considered it likely that the respondent would have continued to support her through these periods, however there is a chance that they may not have been willing to do so. There is also a chance that she may have wished to leave for other personal reasons, either in her work life or home life. She stated that she had faced bullying at work several times from managers and colleagues. We considered that opting to work part-time on a 0.5 FTE post from 1 September 2023 (see paragraph 35) would have significantly reduced the stress on her caused by work and her colleagues and help her manage her sickness absence. Further it would provided her with personal time to deal with any other life events. She came across as a committed and determined lecturer and we considered that it was likely that she would wish to continue to manage her conditions and to work as a lecturer. Therefore we considered that there was a 10% chance that between 1 September 2023 and her 70th birthday in 2030 Dr Turton would have either been dismissed or opted to leave for either ill health or other work related or personal reasons (this is referred to as the withdrawal factor). Whether Dr Turton would have been made redundant in 2022?[25]In our liability judgment we found that the decision to subject Dr Turton to a redundancy procedure was an act of discrimination. This was because, the burden having shifted to the respondent, the respondent had “not provided any explanation as to why they included Dr Turton in the “at risk” pool”: pg 96 [Judgment para 209]. This was based on the evidence of the respondent’s witness, Ms Ockleford, who could not explain why Dr Turton, who was a specialist psychology lecturer, was placed into the ‘at risk’ redundancy pool: pg 78 [Judgment para 115].[26]Mr Pincott submitted that the consequence of the Tribunal’s finding was that Ms Bateman (a specialist biology lecturer) should have been placed into the “at risk” pool along with Dr Turton. In other words had the respondent included Ms Bateman there would have been a one in four chance that Dr Turton would have been made redundant. We considered that this is a misinterpretation of our Judgment. The issue that we were asked to determine was whether the respondent “subjected Dr Turton to a redundancy procedure” (issue 3.2.7). We concluded that the inclusion of Dr Turton in the “at risk” pool, was an act of discrimination. In other words she should not have been placed into the pool at all. This was because on the evidence before us Dr Turton’s circumstances were no different from that of the other specialist lecturer, Ms Bateman, who had been excluded from the pool. We considered that our liability decision and reasons should have been clear to the respondent and that is how it was understood by the claimant (see Dr Turton’s remedy statement para 24). In any event our decision should be read in the light of the issue that we were asked to determine.[27]We do not consider that Dr Turton would have decided to resign had it not been for the discriminatory act of placing her in the redundancy pool. This is because she loved her job. Also had Dr Turton not been placed at risk either Dr Peet or Ms Woodman would have been made redundant, removing one of the discriminators. We consider that the most likely person to have been made redundant would have been Ms Woodman, since Dr Peet had been employed longer and had taken on additional responsibilities which led to her promotion to Curriculum Manager in December 2022. Whether Dr Turton would have been made redundant in 2023 or thereafter?[28]Dr Mawby (Executive Director of Curriculum and Quality) came across as a straightforward and knowledgeable witness, and his evidence was supported by the contemporaneous documents. We have therefore accepted his evidence regarding student numbers, funding and the future of the HE Access courses.[29]We find that there has been a significant decline in the number of students doing the Access to HE courses over a seven year period. We were referred to student enrollment spreadsheets which recorded the number of students by academic year as follows (pages 378- 385):• academic year 2018/19: 224 students;• academic year 2019/20: 160 students;• academic year 2020/21: 167 students;• academic year 2021/22: 102 students• academic year 2022/23: 72 students; and• academic year 2023/24: 76 students. Dr Mawby stated in evidence that for the academic year 2025/6 the respondent had recruited 55 students to date and that they expected to get to 60 students.[30]Whilst the sharp decline in student numbers in 2022/23 may be in part attributable to what was going on at the college at the time, there had already been a decline prior to that year and the decline has continued. Dr Mawby stated that the trend was not an anomaly and reflected a decline across the FE sector. He was confident that HE Access would survive but that the course would not need full time specialist teachers for the foreseeable future. He informed us that psychology teaching on the HE Access course is currently the equivalent of an 0.5 FTE post.[31]Over the same period there has also been a drop in adult funding rates from £2,178,915 for the funding year 2018/19 (pg 363); £2,231,206 for the funding year 2022/23 (pg 345); to £1,774,446 for the funding year 2024/25. Whilst this funding allocation was for all the respondent’s adult education course not just the Access courses, Dr Mawby explained that it has had an impact on the HE Access course and has led to the respondent reducing adult Access courses in favour of 16-18 year old provision. This has led to the respondent developing an A level psychology course for the year 2024/25, with the possibility of 5 hours teaching pw in 2024/25 and 10 hours teaching pw in 2025/26. We noted that Dr Turton would not have needed to requalify to teach this course. Dr Turton had previously taught at a grammar school (as maternity leave cover) and was an A level examiner and therefore would have been well placed to teach this course.[32]In terms of impact on staffing, at the beginning of the academic year 2021/22 there had been 4 FTE lecturers (teaching 24 hours pw) and 1 curriculum manager employed to deliver the HE Access course. Dr Turton’s departure reduced the number of FTE lecturers to 3 FTEs. In the academic year immediately following her departure (2022/23) there were further staff changes. Ms Bateman, who had been employed on a 1.0 FTE post, left and was replaced by a 0.5 FTE post. Dr Peet was promoted to curriculum manager (replacing Mr Coyle who was moved to another department). Therefore in the academic year 2023/24 there was 1.5 FTE lectures and 1 curriculum manager. This remains the case for 2024/25.[33]The drop in Access student numbers and the drop in funding supports the respondent’s case that had Dr Turton not taken voluntary redundancy in the summer of 2022, it is likely that there would have been a further reorganisation of the roles of HE access staff in the summer of 2023. Mr Horan submitted that since Dr Turton was forced to leave there have been no further redundancies. Whilst that is correct we did not consider that to be the whole picture, as Dr Mawby explained, further reductions in FTE has been achieved by “Access staff leaving without equivalent replacement and some moving to teach in other areas of the college”. Had Dr Turton not left in the summer of 2022, Ms Bateman who was supportive of Dr Turton, may well not have chosen to resign. On the other hand we considered that Mr Coyle probably would have been moved to another department, enabling Dr Peet to be promoted. We did not consider that Dr Turton would have been promoted over Dr Peet for two reasons:(1) Dr Peet had taken on additional responsibilities such as internal quality assurance and(2) Dr Turton loved teaching her students, that is what motivated her, and we considered it unlikely that she would have been interested in a management post with only 6 hours teaching pw. This would have meant that there were 2:0 FTEs: Ms Bateman and Dr Turton, when the department only required 1.5 FTEs.[34]Further, and more significantly, we accept Dr Mawby’s evidence that the reduction in student numbers would have meant that by the summer of 2023 there was no longer a need for a specialist 1.0 FTE psychology lecturer to teach psychology courses on the Access to HE course. We noted that in 2025 psychology teaching on the HE Access course was the equivalent of an 0.5 FTE post. Similarly had Ms Bateman not resigned there would have been a reduced need for a specialist 1.0 FTE biology lecturer since when she left her post was replaced by an 0.5 FTE post. We do not consider that Dr Peet would have been put at risk because she had been promoted.[35]Therefore we considered that there was a 100% chance that Dr Turton’s 1.0 FTE post would have been put at risk of redundancy in the summer of 2023. However we noted that the respondent were willing to consider alternatives to redundancy by moving staff to teach in other areas of the college. Dr Turton had survived previous redundancy rounds and we consider that the respondent placed a high value on her expertise and would have wished to retain her if it could. Therefore we considered that the respondent would have sought to retain her either by offering her a part-time 0.5 FTE post as specialist psychology lecturer teaching on the HE Access course and the fledgling A level course, or a full-time time post as a generalist lecturer covering more than one subject area and / or moving to teach in other areas of the college. This would have commenced at the start of the next academic year ie 1 September 2023.[36]We considered that faced with the choice of being a 1.0 FTE generalist lecturer or moving to 0.5 FTE part-time work retaining her specialism, Dr Turton would have opted to go part-time and that she would not have been interested in becoming a generalist lecturer. This would have enabled her to concentrate on her writing. This was something that she clearly wanted to pursue, had been an ambition of hers since her 20s and was the reason she had done a PhD. She already had an editor, written seven chapters and received good feedback. We considered that as she got closer to retirement that this was something that she would have wished to focus on. Further she loved teaching psychology but showed no interest in more general teaching. In addition, it was likely that Dr Turton would have wished to reduce the stress on her caused by her work environment, rather than increase it by taking on a full-time generalist role. She stated that she had previously faced bullying at work several times from managers and colleagues who saw her as “odd or unsociable” and that she is not good at “social communication” (remedy statement para 4). Working parttime would have reduced these interactions. We also noted her higher than average sickness absence, and working part-time may have enabled her to better manage her conditions. We have found that she had already intended to reduce her hours on reaching retirement age (i.e. 66 years old), this was only three years before that date. Had she gone part-time, she would have had the option of increasing her earnings by taking on more examiner work.[37]We did not consider that being put at risk of a non-discriminatory redundancy would have triggered a deterioration of Dr Turton’s health to the extent that she was unable to continue to work as Mr Pincott submitted. Dr Turton had previously been put at risk of redundancy, and at the same time her husband informed her that he was leaving, her dog died and she was at high risk of losing her house. Whilst this combination of events had triggered a significant deterioration in her mental state, she had bounced back. Dr Singh stated in evidence that if Dr Turton had just lost her job it would make her anxious and depressed, but she would not have perceived it as psychologically humiliating. We considered that if the respondent had explained to Dr Turton the reason she was put at risk of redundancy, properly consulted her about alternatives and given her the option of becoming a generalist lecturer or going part-time, that she would not have perceived this as discrimination and psychologically humiliating. Dr Turton’s current health and prognosis[38]Dr Turton stated that the discrimination that she was subjected to exacerbated her symptoms of her disability and that she feels “fundamentally changed; different in a negative way”. She was unable to come to terms with the loss of a job that she loved and cannot face going into or even near learning environments. She can barely bring herself to leave home, yet alone seek work.[39]Mrs Turton stated that her daughter is a “completely different person to the person who existed before”. She has frequent panic attacks and in order to avoid the embarrassment of having a panic attack she barely leaves her home. The things that she enjoyed are no longer part of her life and she was living a “very sad, limited and tragic existence".[40]This was confirmed by her daughter who described the change that she had seen in her mother and that she has never seen her mother as “broken” as she was following these events. She explained how her mother had survived traumatic personal events and been able to bounce back, whereas she had not been able to bounce back from her treatment by the respondent. She described how her mother had been “outgoing, full of fun, always with a ready joke or pun”. That she loved eating out, eating with family and visiting them all, she also described her mother’s work was her “absolute passion” and that her mother took enormous pride in the work that she did. Whereas now her mother was always serious, almost never goes out, and rarely visits her family.[41]Dr Turton’s evidence, and that of her family, is supported by Dr Singh who stated that following her redundancy she was “not fit to undertake even low contact or remote marking work, as she was experiencing acute symptoms of PTSD, depression, and anxiety requiring hospital intervention and specialist treatment”. Her psychological state was “too unstable for consistent occupational functioning, even in a reduced capacity”: pg 198.[42]In terms of the future, Dr Turton is claiming losses up to the date of retirement at 71 years old on the grounds that, whilst her health may improve, she is unable to return to any education-related work and may only be able to earn a modest income from writing and publishing books of £2000 pa. Dr Singh’s opinion was more optimistic. Dr Singh concluded that:42.1 Dr Turton was likely to become well enough to engage in some form of adapted work in the future assuming she received appropriate ongoing psychological support (eg trauma focused therapy), occupational support, and structure reengagement: pg 166 [report para 109].42.2 Within 12 to 18 months (by mid-to-late 2026), Dr Turton may be able to begin a phased return to modified a remote working such as marking: pg 167 [report para 110] and pg 198. She was not yet ready for sustained or high pressure roles: pg 198. Her ability to return to teaching in a mainstream education setting may remain limited indefinitely: pg 167 [report para 111]. In evidence Dr Singh confirmed that Dr Turton could start marking in July / August 2026. Further if Dr Turton responded positively to treatment then there was a 50% chance of her returning to part-time teaching by 2028 and full-time teaching by 2029. She considered that there was a realistic chance that Dr Turton could respond positively to treatment the next year or the year after.[43]During her employment with the respondent Dr Turton had done A level examining work for Ed Excel and been offered A level examining work by AQA. This was on a self-employed basis and the marking was done remotely. The contracts were offered on an annual basis, the AQA contract in January and the EdExcel contract in March: pgs 241 and 260. We were not provided with the EdExcel contract but were provided with the AQA 2023 contract (which is likely to be similar). The contract was for the provision of services from 1 April 2023 to 30 September 2023: pg 246. It required attendance at any necessary training, a commitment to downloading the emarker software by 29 May 2023 and completing the first batch of examining by 26 June 2023: pg 244. We therefore considered that it as not realistic to expect Dr Turton to be fit enough to commit to a marking contract in January and / or March 2026 with a commitment to start the marking process in May / June 2026. This is because it was before the 12-18 month recovery period identified by Dr Singh. However we considered that it was realistic for her to take on this work the following year (2027) and to double this amount the year after (2028).[44]In terms of the type of employment that Dr Turton could do once her health improved, Mr Pincott submitted that it would be reasonable for her to:44.1 Apply for a post as a teacher in a sixth form school: Dr Turton disputed this since she has a PGCHE not a PGCE. Whilst she had previously worked in the sixth form school, this was only a temporary post (maternity cover) which did not require PGCE qualifications. Ms Le Poidevin stated that it would be “very easy” for Dr Turton to obtain QTS to enable her to teach in schools. It only required the production of a portfolio of evidence of her teaching. Many of Dr Turton’s colleagues had done that and it takes less than a year. We considered that once she was fit to return to work, it would be reasonable for Dr Turton to obtain QTS in order to increase the options available to her.44.2 Apply for a post as a university lecturer. We did not consider this suggestion to be reasonable. Although Dr Turton has a PhD, she has not worked in HE for many years and has no active research experience. We agreed with her that there are no pure teaching roles in universities. Similarly it was not reasonable to expect her to apply for pure research roles for the same reason that she has not been engaged in active research for many years.44.3 Become a practitioner in a clinical setting. It was not disputed that Dr Turton did not currently have the necessary experience or qualification to apply for a practitioner role in a clinical setting. This would require retraining, but it was something that Dr Turton stated in evidence that she would be willing to consider when her mental health improved. Further she stated that private practice was appealing. We considered that this would be a good option for Dr Turton since it could enable her to set up her own practice and be self-employed. This would enable her to be in charge of her workload and social interactions, and to manage any future episodes of ill health.[45]Based on the evidence of Dr Singh, we found that a return to a part-time teaching role (or equivalent clinical role) was a realistic possibility from 1 September 2028. Calculation of Pecuniary loss[46]The remedy calculations are attached as Appendices 2 and 3. Salary[47]Dr Turton has claimed loss of salary calculated as £586.21pw (net). This sum has not been disputed by the respondent. Dr Turton has not claimed annual pay increases, and we have not been provided with evidence from which to make an assessment, therefore we have not taken this into account.[48]We have found as a fact that Dr Turton would have opted to reduce her hours to a 0.5 FTE post for the academic year 2023/24 i.e. from 1 September 2023. We have found that she would have remained in this post until retirement at 70 years with a 10% chance that she would have left before that date.[49]We have also found as a fact that following her voluntary redundancy Dr Turton was not fit to return to any work and that she will remain unfit to return to any work until July / August 2026. From that date she would be medically able to take on some work. Dr Turton’s schedule of loss estimated annual posthearing income from writing and publishing books of £2000pa. We consider that she would be fit enough to commence this work from July / August 2026. She would then be fit enough to enter into a contract with either EdExcel or AQA in early 2027 to do marking over the summer of 2027 at the same level as previously. This could then increase to double that amount in the summer of 2028. She would then be fit enough to take on part-time work from 1 September 2028. The point at which Dr Turton is able to take on part-time work she would be on equivalent salary to that she would have been on had she not been discriminated against. Pension loss[50]Dr Turton has claimed both loss of employer and loss of employee pension contributions. Mr Horan accepted that Dr Turton is only entitled to claim loss of employer contributions. This is because had she remained in the respondent’s employment she would have had to continue to pay employee contributions. The pension loss is reduced by 50% from 1 September 2023 since we have found that from this date Dr Turton would have been on a part-time 0.5 FTE contract. There is a dispute between the parties as to the amount of employer contributions. The claimant claimed £200.28pw: the respondent has stated that it is in fact £181.15pw. In order to resolve this dispute we checked the claimant’s pay slips, which confirmed the correct amount was £181.15pw: pg 219-221.[51]Dr Turton had also claimed loss of the value of her pension because it was taken early. Mr Horan accepted that since Dr Turton is claiming loss of pension contributions (which is used for simple pension calculations) she cannot also claim loss of value of the pension (which would require a complex pension calculation), since this would be double recovery. Withdrawal factor[52]We have found that following Dr Turton entering into a part-time 0.5 FTE contract there was a 10% chance that the Claimant would have left the respondent’s employment between 1 September 2023 and 18 June 2031. Loss of health benefit[53]Dr Turton has claimed loss of health insurance benefit of £450. Mr Horan accepted that the Tribunal had not been provided with any evidence or explanation as to what this figure represented or how it was calculated. Accordingly, we have not taken this into account. Examining work[54]Dr Turton has claimed loss of examination marking income for EdExcel of £3,193.11 gross pa. The amount is based on the fees she had received in 2019: pg 218. She had been acting as an Examiner in GCSE Psychology since she started working for the respondent because it helped her understand what the examination boards were looking for. Dr Turton stated that, with the exception of the COVID years (2020 and 2021) when students did not sit exams, every year, around March, EdExcel would send her an automated email with an offer of a contract to do the marking for the summer of that year: see eg pg 260. This arrangement continues until the examiner asks to be removed from the list. Dr Turton confirmed that an examiner did not need to be a current teacher and that many ex-teachers do this work in retirement and her father had done so for many years.[55]Dr Turton stated that she was offered examination work by EdExcel in or around March 2022, but did not accept the offer due to what was going on at the respondent college. This was during the period that Dr Turton was being subjected to a disciplinary investigation arising from the false racism allegation against her. Further the respondent were refusing her request for a reasonable adjustment to allow her to work separately from Ms Woodman and Dr Peet as much as possible. We considered that but for those events Dr Turton would have renewed her contact with EdExcel to be an examiner in 2022 and thereafter.[56]Dr Turton had also been offered work by AQA, another examination company: pg 241-259. Dr Turton confirmed that she was not claiming losses in relation to this offer since she had never earned any money from them.[57]Dr Turton confirmed that this work was self employed and she was responsible for paying tax on the fees earned as an examiner. Loss of statutory rights[58]Dr Turton has claimed loss of statutory rights of £500. Mr Horan accepted that she was not entitled to this sum as this was not an unfair dismissal claim and this head of loss was withdrawn. Employment and Support Assistance (ESA)[59]Dr Turton has claimed that there should be no reduction for receipt of the ESA of £21,984.13 since it will be recouped by the DWP. Mr Horan accepted that the recoupment provisions did not apply to discrimination claims and therefore accepted that this sum is to be deducted. In addition we accept that ESA receipts should be deducted from future loss at the respondent’s estimated amount of £7,308 pa. Mortgage fees[60]Dr Turton has claimed early repayment charges of £3,895 incurred as a result of paying off her mortgage early: pg 223. In fact this was the early repayment charge that would have been made had Dr Turton paid off her mortgage in 2020. The charge she incurred in 2022 was £1,837.38 (£1370.47 and £466.91): pgs 225- 227. In any event we accepted Mr Pincott’s submission that the early repayment charge simply reflects the interest the bank would otherwise have charged Dr Turton if she had made her mortgage repayments as normal.[61]Since Dr Turton has incurred no loss as a result of paying off her mortgage early, we do not make any award for this sum. Discount for accelerated receipt[62]Mr Pincott submitted that any award for future losses should be discounted for accelerated receipt with the discount to be applied being 5%: Bentwood Bros (Manchester) Ltd v Shepherd [2003] IRLR 364 (CA). This is because Dr Turton would be receiving a lump sum which she could invest rather than receiving the money incrementally over the period of that future loss. Mr Horan submitted that there should be no discount.[63]We considered that in principle where the sum being awarded is a large amount then a discount for accelerated receipt should be applied. However we noted that Bentwood Bros is over 20 years old and that that interest rates have varied considerably since that date. We considered that the discount rate applied to personal injury cases was a better indicator of likely interest rate over the relevant period. The discount to be applied to PI cases is set by the Lord Chancellor under powers provided by the Damages Act 1996. The Damages (Personal Injury) Order 2024 has fixed the discount rate from 11 January 2025 at 0.5%. Ogden Table 35 (Discounting factors for term certain) was then used to obtain the multiplier for a deferment period of 2 years of 0.9901. Injury to Feeling[64]Dr Turton has claimed injury to feeling award of £30,000. Mr Horan submitted that at the time that Dr Turton submitted her schedule of loss this sum was the bottom of the upper Vento band, however the amount has not been increased. Mr Pincott submitted that this is a middle band case and that the award should be £20,000.[65]An injury to feeling award may be awarded for subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression: Vento v Chief Constable of West Yorkshire Police (No2) [2003] IRLR 102). It should be compensatory not punitive, should command public respect and should bear some broad general similarity to the range of awards in personal injury cases: Prison Service v Johnson [1997] IRLR 162 (EAT). The focus is on the actual injury suffered by Dr Turton and not the gravity of the acts of the respondent: Komeng v Creative Support Ltd UKEAT/0275/18/JOJ.[66]The relevant Vento bands are1:66.1 Upper Band: £36,400 to £60,700 to be applied only in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment; and66.2 Middle Band: £12,100 to £36,400 for serious cases that do not merit an award in the upper band.[67]The proven acts of harassment by Ms Woodman, and to a lesser extent Dr Peet, took place over a 6 month period (November 2021 to April 2022). It was deliberate and concerned more than one discriminator. Further the respondent as an organisation failed to support Dr Turton. It knew that she found social interactions difficult and at times distressing yet it failed to put in place reasonable adjustments that would have limited her contact with Ms Woodman and Dr Peet during the investigation of her grievance and until the recommendations (including mediation and awareness training) were implemented. In addition it then directly discriminated against her by placing her at risk of redundancy, and making her feel that she had no choice but to take voluntary redundancy due to the deterioration in her health caused by the discrimination. We considered that this put this claim towards the top end of the middle band.[68]Dr Turton identified Ms Woodman’s mocking of her disabilities and being falsely accused of racism as massively overshadowing everything else. In particular she stated that “it was the racism thing that pushed me over the edge”. Dr Turton described the impact on her as “standing on a motorway hit by a truck, I lay there and eventually got the energy to get up and then hit by car and got up and then bang hit by another car”. We accepted her evidence of the impact on her. She was subjected to a disciplinary investigation, the public nature of these acts damaged her reputation in front of both colleagues, students and former students. This was exceptionally upsetting for her.[69]We accepted that the treatment affected Dr Turton’s confidence. She told us that she would no longer feel safe disclosing her disabilities to persons at work or requesting reasonable adjustments. She stays away from people since she is terrified that people will find out that she has autism and ADHD because she thinks she will be bullied and spoken to like she is an idiot. She has lost trust in employers and fears being put into that situation again. She feels worthless and is no longer proud of her academic achievements. Her evidence is supported by Mrs Turton (her mother) and Ms Epps (her daughter).[70]Therefore we considered that this was a middle band case, albeit towards the top end. However, we have made a separate award for personal injury, and therefore award £29,000 for injury to feeling in order to avoid double recovery. 11 For claims heard on or after 6 April 2025 Personal injury[71]The Judicial College guidelines for the assessment of general damages in personal injury cases (17 Ed. published in March 2024) suggests that the following factors are to be taken into account when valuing claims of psychiatric injury:71.1 the injured person’s ability to cope with life and work;71.2 the effect on the injured person’s relationships with family, friends and those with whom he comes into contact;71.3 the extent to which treatment would be successful;71.4 future vulnerability;71.5 prognosis;71.6 whether medical help has been sought; and71.7 whether the injury results from sexual and/or physical abuse and/or breach of trust; and if so, the nature of the relationship between victim and abuser, the nature of the abuse, its duration and the symptoms caused by it.[72]There are four categories of award (including the Simmons v Castle uplift), of which relevant to this case are:72.1 Moderate: between £7,150 and £23,270 where there has been marked improvement made by the date of the hearing and the prognosis is good;72.2 Moderately Severe: between £23,270 and £66,920. This includes workrelated stress cases resulting in a permanent or long-standing disability preventing a return to comparable employment. These are cases where there are problems with the first four factors above, but there is a much more optimistic prognosis than Severe;72.3 Severe: between £66,920 and £141,240. Where the claimant has serious problems in relation to the first 4 above, and the prognosis is poor.[73]Where an individual is awarded sums both for injury to feelings and personal injury caused by the discrimination, the injury to feelings and personal injury awards must compensate for different injuries and not overlap, otherwise there would be double recovery.[74]We took into account that Dr Turton has a number of longstanding neurodevelopmental and trauma-related conditions (set out in paragraph 21 above). We accepted Dr Singh’s evidence that the proven acts of discrimination significantly contributed to the deterioration of Dr Turton’s mental health, particularly her PTSD, anxiety, and depressive symptoms: pg 164 [report para 100]. This was both in terms of severity, a chronicity and functional impact: pg 165 [report para 101]. Dr Turton’s condition “progressed from moderate pre- existing vulnerability to clinically significant psychiatric and physical incapacity”: pg 169 [report para 118]. In particular Dr Singh informed us that Dr Turton’s PTSD symptoms had intensified and she had developed severe anxiety including panic attacks and psychosomatic symptoms. Further there had been a collapse in mental stability including suicidal ideation and functional withdrawal from normal daily activities: pg 168 [report para 117].[75]We also noted that for the first time Dr Turton has experienced episodes of Atrial Fibrillation and Supraventricular Tachycardia. Dr Turton believes that this condition has been caused by severe stress, because stress affects the brain causing a fight or flight reaction which in turn produces adrenaline and increases her heart rate to 170-180 beats per minute. Dr Singh informed us that the contemporaneous medical records suggested a clinically observed relationship between Dr Turton’s psychological stress and exacerbation of her cardiac symptoms. However Dr Singh explicitly declined to give an opinion as to the whether the tachycardia episodes were directly caused, aggravated or merely coincidental to psychological stress: pg 163. Dr Singh stated that any determination of cardiological causation lay outside her expertise and that an opinion should be sought from a cardiologist: pg 187. We noted from the medical bundle that there is evidence that one of the side-effects of Dr Turton’s ADHD medication was palpitations/tachycardia: pg M/561. In the absence of clear medical evidence as to causation, and in the light of potential contrary evidence, we do not find that the discrimination caused the cardiac symptoms.[76]Dr Turton is seeking an award of £15,000 for personal injury. There is no explanation as to the basis of the amount that is being claimed. Mr Horan did not address us on which Judicial College guidelines bracket should be applied nor did he refer us to any quantum cases.[77]Mr Pincott’s primary position is that there should be no award for personal injury, in addition to that for injury to feeling, because it would amount to double recovery since the injury claimed is the same for both cases.[78]Mr Pincott submitted that the personal injury award should fall in the moderate category of £20,000. He accepted that on the facts the case fell in the borderline between moderate and moderate severe but submitted that the award should be reduced to “moderate” taking into account Dr Turton preexisting symptoms and that the increase in those symptoms was relatively moderate. He relied on the quantum case of WC v TG Ltd (2011) which awarded £11,843 (when inflation is taken into account that would produce an award of £20,086) for pain suffering and loss of amenity.[79]The case of WC also concerned a claimant who had a pre-existing vulnerability (depression) who suffered a major depressive disorder following her resignation, which the tribunal had found was caused by her adverse working environment. As a result of her psychiatric injuries she had persistent low mood, markedly diminished interest or pleasure in all activities, insomnia, loss of energy, feelings of worthlessness and diminished ability to concentrate. She was unable to return to work for the employer but was able to retrain and start a new job as a carer within 1 month of her resignation. She received a period of counselling and cognitive behavioural therapy. In our view Dr Turton’s injuries are significantly worse. Three years after her resignation she is still unable to return to any form of employment and Dr Singh put her chances of responding to treatment to enable her to return to equivalent employment at 50%. In other words there was a 50% chance that Dr Turton will not be able to return to any equivalent work.[80]Taking all the above into account we considered that there has been an identifiable personal injury, in addition to injury to feelings. We considered the personal injury to fall in the moderately severe bracket. However there is a significant overlap with the injury to feeling award. In order to avoid double recovery we have awarded £8,000. Taking into account the injury to feeling award this would provide a total award of £37,000 (the equivalent of the middle of the moderately severe personal injury bracket). We consider that this is an appropriate overall amount taking into account the severity of the increase in Dr Turton’s symptoms and the extent of her injury to feelings and there being only 50% chance of a return to equivalent employment by 2028. Aggravated damages[81]Aggravated damages may be awarded where there has been high-handed, malicious, insulting or oppressive behaviour: Commissioner of Police of the Metropolis v Shaw (UKEAT/0125/11/ZT). This may include failure to apologise or failure to treat a complaint with the requisite seriousness.[82]We have found that false racist remarks allegation was a deliberate act by Ms Woodman done with the purpose of creating a hostile etc environment for Dr Turton: pgs 86 and 90 [Judgment paras 162 and 179-180]. It was an attack on her reputation and could, and indeed did, turn students against her. We have also found that Ms Woodman’s mocking of Dr Turton’s by tapping her head was not done with kindness but instead done to generate laughter at Dr Turton’s expense and with the purpose of creating a hostile etc environment for her by undermining her position and diminishing her authority in front of her students.[83]We have decided to award aggravated damages because of the deliberate nature of Ms Woodman’s actions, the public nature of those acts and the failure of the respondent to take any action against Ms Woodman and Dr Peet, even after promulgation of our liability judgment. It seemed to us that the respondent is simply not taking our findings seriously, which was disturbing given the overt nature of some of the acts of discrimination. We have decided to award aggravated damages of £5,000 on top of the award for injury to feeling. We do not consider that this is double recovery. In the injury to feeling award we have taken into account the upsetting nature of these actions and the impact on Dr Turton, in the aggravated damages award we are taking into account that the actions were high-handed, malicious and insulting.[84]On the other hand, we do not accept Dr Turton submission that aggravated damages should be awarded because the respondent called witnesses to attend the remedy hearing who did not attend the liability hearing. It is a matter for a party to decide which witnesses they wish to call. We considered that Dr Mawby, and to a lesser extent Ms Le Poidevin, were relevant witnesses to the issue of remedy since they addressed the question as to whether or not Dr Turton would have left the respondent’s employment at some point between the date of her resignation and the date of her retirement.[85]Therefore we award aggravated damages of £5000. Breach of the ACAS Code by the respondent[86]Mr Horan submitted that the respondent was in breach of the following provisions of the ACAS code:86.1 Paragraph 4 (1st bullet point): Employers should deal with issues promptly and not unreasonably delay meetings, decisions or confirmation of those decisions.86.2 Paragraph 4 (3rd bullet point): Employers should carry out any necessary investigations, to establish the facts of the case.86.3 Paragraph 33: Employers should arrange a formal grievance meeting to be held without unreasonable delay.86.4 Paragraph 34: Employees should be allowed to explain their grievances and how they think it should be resolved. Consideration should be given to adjourning the meeting for any investigation that may be necessary.86.5 Paragraph 40: Following the grievance meeting employers should “decide on what action, if any to take”. The employee should be informed of the decision in writing and informed of the right to appeal. Whether there was unreasonable delay[87]Dr Turton has claimed that there was an inordinate delay between the submission of her grievance on 3 October 2021 and the outcome on the 13 June 2022. There is no evidence that Dr Turton submitted a grievance on 3 October 2021 and it was not part of her case before us at the liability hearing.[88]We have found that on 25 January 2022, Dr Turton informed Mr Coyle that she wished to take out a grievance in relation to what Ms Woodman had said to student C (false racism allegation): pg 57 [Judgment para 50]. We have not been shown any evidence that she did submit a grievance on this date. In any event, we agree with the respondent that it would not have been appropriate to investigate this grievance until completion of the investigation into student Cs complaint (completed on 22 February 2022).[89]On 26 February 2022 Dr Turton submitted a formal grievance, primarily against Ms Woodman, Dr Peet and Mr Coyle: pg L/1006 and Mr Hyland’s witness statement)2. On or around 27 February 2022 Dr Turton put up the Facebook post. On 4 March 2022 Mr Hyland was appointed as the investigator. The same day Dr Turton’s grievance was acknowledged, and she was informed that a grievance meeting would be arranged on her return to work from sick leave sometime after 8 March 2022: pg L/1006. The respondent then became aware of the Facebook post and decided to combine the grievance investigation with a disciplinary investigation into the Facebook post. We considered that this was a reasonable approach to have adopted since the two were linked. On 18 March 2022 Dr Turton was invited to attend a combined grievance and disciplinary investigation on the 1 April 2022. On 20 March 2022 Dr Turton submitted a further grievance against Mr Coyle. The same day she was taken by ambulance to A&E and on 22 March 2022 was referred to OH as to whether she was fit to attend management discussions (a reference to the grievance and disciplinary investigation). On 30 March 2022 OH confirmed that she was. 2 This grievance was not included in the liability hearing bundle The meeting on 1 April 2022 took place over 2 sessions to enable Dr Turton to have breaks. We considered that taking all this into account there was no unreasonable delay over this 5 week period in breach of the ACAS code paragraphs 4 (1st bullet point) and 33. The grievance outcome was provided to Dr Turton on the 13 June 2022. This was a further 6 week period. Again we did not consider that this was an unreasonable delay. This is because given the nature of Dr Turton’s grievance, which concerned multiple complaints against three individuals, and consideration of a significant amount of documentary evidence, it would have taken this amount of time to properly investigate. Therefore there has been no unreasonable delay and no breach of the ACAS Code paragraph 4 (1st bullet point). Inadequate investigation[90]A grievance investigation meeting was conducted with Dr Turton on 1 April 2022 to enable her to explain her grievance. We have found that there was nothing inappropriate about the way in which this meeting was conducted: pg 101 [Judgment para 233]. Therefore there was no breach of ACAS code paragraph 34.[91]In her liability witness statement Dr Turton had identified a number of concerns regarding the conduct of the investigation. These matters were not put to Mr Hyland during his cross-examination. The failure to interview the student witnesses was raised at the liability hearing. The ACAS Code paragraph 4 (3rd bullet point) does not require employers to interview witnesses it merely requires an employer to conduct necessary investigations to establish the facts in the case. The reason that Mr Hyland did not interview these witnesses was because he found that “by all accounts, the students are quite heavily divided and loyalties are split between tutors”: pg L/1010. Given that we have found that the respondent had received complaints from students against Dr Turton (pgs 68 and 71 [Judgment para 58, 60 and 77) it was reasonable for the respondent to adopt this approach. Our Judgment noted that Dr Turton had not provided Mr Hyland with the audio recording (pg 75 [Judgment para 102]) and therefore his conclusions were made without the benefit of having listened to those recordings. Inappropriate outcome[92]Mr Horan submitted that the outcome was inappropriate because the respondent ignored the recommendations. Therefore it appears that there is no criticism of the outcome itself, nor the recommendations which Dr Turton had described as being “spot on”: pg 76 [Judgment paras 105 and 107]. The ACAS Code paragraph 40 does not require the outcome of any grievance to be implemented, nor does it specify a period of time for implementation. It merely requires an employer to inform the employee of the outcome and her right to appeal. Accordingly there has been no breach of the ACAS Code. That does not mean that Dr Turton is left with no remedy for this failure. The failure to implement the recommendations of the grievance within a reasonable period of time was one of the triggers that led to Dr Turton feeling forced to take voluntary retirement and formed part of our finding of direct disability discrimination: pg 97-98. Breach of the ACAS Code by Dr Turton[93]Mr Pincott submitted that Dr Turton was in breach of the ACAS Code paragraph 32 which provides that employees should raise grievances with their employer. This was based on Dr Turton’s failure to pursue her second grievance against Mr Coyle and Dr Peet submitted on 23 July 2022: pg 1341.[94]On 2 August 2022 Mr Wade (grievance investigator) asked for further information from Dr Turton: pg L/1352-3. Dr Turton responded the same day declining to provide this information and stating that she was withdrawing her grievance because she was “not prepared to make myself ill” and that the matter would be determined by a tribunal: pg 411. Given her state of health at the time we considered it reasonable for her not to pursue this grievance. On the 20 June 2022 she had been taken by ambulance to A&E and diagnosed as having Supraventricular Tachycardia, on 14 July 2022 she had felt forced to take voluntary redundancy because of her health and she was not in the right state of mind to go through the redundancy process: pgs 77 [Judgment para 109] and 78-79 [Judgment para 121]. Dr Singh stated that in the immediate period following the termination of her employment (31 August 2022) Dr Turton was suffering severe psychological distress. Her exit from employment was made under “significant psychological pressure and emotional exhaustion, with reports indicating suicidal ideation, dissociation and emotional collapse“ resulting in a period of “psychiatric incapacity”: pg 165 [report para 103]. Taking into account Dr Turton’s severe mental health at the time that she withdrew her grievance, we did not consider it appropriate to apply a discount for failing to pursue her second grievance in breach of the ACAS Code paragraph 32. Grossing up[95]Awards should be “grossed up” by a tribunal where the sum to be received by the claimant will be taxed. The purpose is to place in the claimant’s hands the sum she would have held been she not been treated unlawfully, i.e. to compensate for the true net loss.[96]Awards for loss of earnings and pension is obviously to be taxed. The position in relation to non-pecuniary awards is more complex. Under section 406 of the Income Tax (Earnings and Pension) Act 2003 awards for psychiatric injury are exempt from tax since they are defined as an “injury”, but the Act specifically excludes awards for injury to feeling. Injury to feeling awards in respect to pretermination discrimination are not subject to tax and therefore should not be grossed up: Weamoor Ltd v Poniatowski [2025] EAT 48. The Act is silent on whether aggravated damages would be defined as an injury, however since it is seen as an element of injury to feeling we considered that it would also be subject to taxation on the same basis.[97]Given that we have found, on the basis of expert evidence, that it was not possible to attribute the harm caused to any particular act, since it was “all part of the continuum that could not be separated”, we are not able to apportion the award for injury to feeling into pre-termination injury and termination discrimination. We consider that all the award for injury to feeling award is likely to be subject to taxation and therefore will need to be grossed up. On the other hand we accept that the aggravated damages award does not relate to the dismissal, but specifically to pre-termination and post-termination acts, and therefore is to be excluded from the grossing up calculation.[98]Further Dr Singh stated, in response to panel questioning that there was no rational basis for apportioning harm in this case since it was all “part of the continuum which could not be separated”.[99]The calculations are set out in the tables in appendix C. The relevant tax year is the year the award is received by Dr Turton. We accept that the first £30,000 is not taxed and should be excluded from the grossing up sum. We have also excluded her marking income since this was paid gross. Further, in the absence of any evidence to the contrary, we have assumed that Dr Turton will receive the full personal allowance of £12,570.
CONCLUSION
[100]Therefore the respondent is ORDERED to pay the claimant the following sums for the acts of proven discrimination:100.1 Past loss of earnings of £53,551.47.100.2 Future loss of earnings of £27,942.87.100.3 Injury to feeling of £29,000.100.4 Personal injury of £8,000.100.5 Aggravated damages of £5,000.100.6 Interest in past loss of earnings, Injury to feelings, personal injury and aggravated damages totalling £15,396.61 (£6,619.84 + £7,169.75+£988.93+£618.08).100.7 Grossing up of £38,266.33. This Judgment has been approved by: COSTS JUDGMENT The unanimous Judgment of the Tribunal is that:
CONCLUSION
[1]The claimant’s first application for costs succeeds in part, and the respondent is ordered to pay the claimant’s costs of £12,465.15 plus VAT. The amount awarded is for:a. additional communications, totaling £460.00 plus VAT;b. preparing the final hearing bundles, totaling to £8,005.15 plus VAT; andc. counsel’s fees for the delay in the start date to day 4, totaling £4,000 plus[2]All other costs sought by the claimant do not succeed.
INTRODUCTION
[1]Following the conclusion of submissions on remedy, the claimant submitted two applications for costs. These were opposed by the respondent.[2]For this part of the hearing we were provided with the following documents:2.1 A joint agreed costs application bundle of 191 pages. The references to page numbers in this Judgment are to the pages in this bundle. The bundle included:2.1.1 The claimant’s first costs application at page 1-8;2.1.2 The claimant’s second costs application at pages 9-11;2.1.3 Schedule A of work done on documents; and2.1.4 Schedule B of the whole costs2.2 The liability bundle, references to page numbers with the prefix “L/” are to pages in this bundle.2.3 The respondent’s response to the claimant’s application for costs (Respondent’s Response).[3]The claimant’s applications only identified that the costs were being sought under ET Rule, rule 74. At the hearing Mr Horan clarified that costs were being sought under rule 74(2) (a) (unreasonable conduct etc.) and 74(2)(b) (no reasonable prospect of success). Mr Pincott objected to the claimant only clarifying at the hearing the grounds of its application. We agree that this was an unsatisfactory state of affairs and offered him the option for an adjournment to take instructions. Mr Pincott confirmed that he was able to proceed without requiring an adjournment.[4]On 18 November 2025 the parties were sent a draft embargoed judgment for consideration. We have taken into account the parties’ corrections in finalising this judgment. RELEVANT LAW[5]Rule 74 of the Employment Tribunal Procedure Rules 2024 provides that: ‘(1) The Tribunal may make a costs order ….. on its own initiative or on the application of a party ….. (2) The Tribunal must consider making a costs order or a preparation time order where it considers that—(a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted,(b) any claim, response or reply had no reasonable prospect of success, or[6]This is a three-stage test:6.1 Whether one or more grounds for awarding costs are engaged i.e. whether the threshold for awarding costs has been met.6.2 If so, whether it is appropriate for the tribunal to exercise its discretion to award costs.6.3 If so, to determine the amount of costs to be awarded.[7]At the second stage, the tribunal has an unfettered discretion as to whether or not to use its discretion to award costs. The mere fact that the threshold for awarding costs has been engaged does not mean that costs should be awarded. Tribunals are ‘no costs’ jurisdictions, and costs remain the exception rather than the rule. Further, if awarded they should be compensatory not punitive.
THE HEARING
[8]Rule 74(2)(a) applies not just to the conduct of a claimant but also their representative. What is done in a party's name is presumptively, but not irrefutably, done on their behalf: Bennett v London Borough of Southwark [2002] ICR 881 CA. Therefore a claimant will be fixed with the conduct of their representative unless they dissociate themselves from what their representative has done. In Beynon and Oths v Scadden and Oths [1999] IRLR 700 costs were awarded against the paying party for the conduct of their representative (a trade union) who was pursuing a claim which it knew, or ought to have known, had no reasonable prospect of success for the collateral objective of achieving union recognition from the employer.[9]Under rule 74(2)(b) whether a claim has no reasonable prospect of success is an objective test. It is not sufficient for the party to genuinely believe in the wrongdoing; the test is whether they had reasonable grounds for that belief. This should be based on the information before them at the time of making the claim or response.[10]The respondent submitted that a claimant can only make an application for costs if they show that they will be the beneficiary of any order made: Barry v University of Wales Trinity St David (ET case no 1603120/2013). We do not agree and note that the subsequent EAT case of Mardner v Gardner and Oths (UKEAT/0483/13/DA) held that a claimant’s insurance policy (which covered his legal costs) was an irrelevant consideration. A respondent should not be allowed to avoid the cost consequences of their unreasonable conduct because the claimant had prudently entered into insurance.[11]Rule 82 provides that the tribunal has a discretion, in deciding whether to make an order for costs and the amount of any costs, to take into account the claimant’s ability to pay. There is however no absolute duty to do so, nor is a tribunal required to limit any order for costs to an amount that a party can pay. DISCUSSION AND CONCLUSION The delay in preparing the final hearing bundle (application 1 paragraph 3.1. 3.2 and 3.3) Whether one or more of the threshold grounds are met
THE LAW
[12]The claimant applied for the following costs under rule 74(2)(a) (unreasonable conduct):12.1 the cost of additional communications with the tribunal, totalling £621.00 plus VAT;12.2 the cost of preparing the final hearing bundles and providing hard copies for the parties and the tribunal, totalling £8,005.15 plus VAT; and12.3 the cost of Counsel’s fees for days 6-8, totalling £11,000 plus VAT.[13]The background to this application was follows:13.1 The final hearing, which commenced on 21 October 2024, had been listed for 8 days.13.2 On day 1, there was no agreed hearing bundle. The claimant had served a bundle of 1659 pages and the respondent had served a bundle of 2086 pages. Neither party were ready to proceed with the hearing.13.3 The claimant applied for the respondent’s response to be stuck out on the grounds that the defence had not been actively pursued and / or for non-compliance with tribunal orders. The tribunal did not grant this application because we considered that it was still possible to have a fair hearing by starting on day 4: pg 75-78 (Judgment para 17-24).[14]In terms of who was responsible for this situation, the Case Management Order made on 18 April 2023 (CMO) had ordered the respondent to send to the claimant the agreed hearing bundle by 31 October 2023: pg 76 (Judgment paragraph 20). The respondent submitted that the claimant’s former solicitors had orally agreed to produce the bundle during a telephone call on 5 August 2024. There is no evidence in support of this submission and there was no reference to this agreement in any subsequent correspondence. We considered it unlikely that such an agreement was reached, and even if it was that it survived the change in the claimant’s solicitors on 20 September 2024. At the liability hearing we found that the respondent was largely responsible for the delays in the hearing preparation prior to September 2024 (Judgment para 23.1). We accepted that the claimant’s representatives also bore some (albeit less) responsibility for this delay (Judgment para 23.1). We also accepted that the respondent’s solicitor’s delay up to 24 September 2024 could be attributed (in part) to settlement discussions between the parties. Although, as we stated at the liability hearing, a party is expected to continue to prepare for the hearing in tandem with such discussions, in case they do not succeed (as indeed happened in this case).[15]In any event, we found that the respondent was solely responsible for the delay following receipt of the claimant’s strike out application on 24 September 2024: pg 77 (Judgment para 23.2). From this date the respondent were on notice that it needed to take urgent action to prepare for the hearing, yet it failed to take any steps to prepare and produce the hearing bundle until the week before the hearing. At the liability hearing we found that this delay was “inexcusable”: pg 75 (Judgment para 19).[16]Mr Pincott referred us to the email exchange of 16-18 October 2024 as evidence that the claimant’s solicitor had agreed to produce the bundle. We accept that on the 15 October 2024 the claimant’s new solicitor agreed to create the hearing bundle and send it to the respondent: pg 152. We find that this was because the respondent had still not provided the hearing bundle a week before the hearing was due to commence and the claimant’s solicitors felt under pressure to provide one themselves. In their correspondence, the claimant’s representative made it very clear that they considered that the respondent remained responsible for producing the bundle including delivery of hard copies to the tribunal, with reference to the CMO (see emails dated 16 and 17 October 2024: pgs 153-154 and 164. In the absence of a clear agreement that the claimant’s solicitor had of their own volition agreed to take over responsibility for producing the hearing bundle and provide hard copies, we find that the responsibility for producing the hearing bundle remained with the respondent.[17]We considered that the lack of action by the respondent’s solicitor following 25 September 2024 to prepare for the hearing amounted to unreasonable conduct. This was compounded by the failure to check its email security system, or contact the claimant’s solicitor, regarding the non-receipt of the claimant’s bundle which they were expecting on 16 and 17 October 2024. Instead on the 18 October 2024 the respondent produced and served its own bundle. That meant that the tribunal were provided with two large hearing bundles, the parties not being ready to commence the hearing on day 1 and the hearing being postponed for two days to enable the parties to prepare.[18]The claimant also applied for costs under rule 74(2)(b) that the response had no reasonable prospect of success. We do not accept the claimant’s alternative submission that the failure to provide a hearing bundle meant that the response could not succeed. The respondent had produced a hearing bundle. The problem was that it had been produced on the last working day before the hearing and neither party was in a position to proceed with the hearing on day 1. The matter was resolved by providing the parties with extra time to prepare. Whether to use our discretion to award costs in the claimant’s favour[19]We noted that costs are the exception rather than the rule and that they should be compensatory not punitive.[20]Mr Pincott submitted that the failure to provide a hearing bundle in advance of hearing is “not out of the norm in employment tribunal proceedings”. We do not agree, the respondent had professional legal representatives who are expected to comply with tribunal orders. Mr Pincott’s submission is also undermined by his later submission that the failings of the respondent’s former solicitors “were so far outside the expected performance of professional legal representatives…” that the respondent college should not be held liable for the conduct of their representative (Respondent’s Response para 21).[21]We have decided to use our discretion to award costs in this case because the respondent’s failure to produce an agreed hearing bundle in good time for the hearing, had significant consequences for the parties and the tribunal. We were unable to start the hearing on day 1 and had to adjourn to day 4. It was fortuitous that the Tribunal was able to delay the start of the hearing due to there being less witnesses than originally anticipated. Had this not been possible there may have been a stronger argument for the response to be struck out because a fair trial was not possible within the trial window.[22]Further, the failure to produce an agreed hearing bundle in good time put the claimant to an additional expense because her representatives had to take over preparation of the hearing bundle. Having served this bundle on the respondent on 16 October 2024, the respondent then failed to check their email system, resulting in their decision on 18 October to serve their own bundle.[23]Mr Pincott submitted with reference to the case of Barry that if the claimant had a damages based agreement with her representatives then she would not be entitled to any award of costs, since she would not be the beneficiary. This point is academic since the claimant, through her representative, denied that she was party to a damages based agreement.[24]Mr Pincott submitted with reference to the case of Bennett that the actions of the respondent’s solicitors were “so outside the expected performance of a professional legal representative that the presumption that it was done in the respondent’s name is necessarily rebutted”. Mr Pincott accepted that the respondent did nothing explicitly to disassociate itself from its former solicitor representatives, submitting that such a dissociation should be implied from the representative’s unreasonable conduct and that the claimant should have sought costs by applying for wasted costs against the respondent’s former solicitors (DAS law). There is a real risk that if we accept the respondent’s submissions that this will open the door to litigants seeking to avoid paying costs for the conduct of their representatives without having to take any active step to disassociate themselves at the time of the conduct. Whilst we accept the possibility that that there may be exceptional circumstances where the behaviour of a representative is so egregious that rebuttal can be implied, in the ordinary case a rebuttal requires an active step by the party to disassociate themselves from what is being done in their name. The respondent could have changed solicitors, after all that is what the claimant did. Following the claimant’s strike out applications on 25 September 2024 the respondent’s should have been aware that their representative’s conduct had put it in breach of tribunal orders, yet there is no evidence of them taking any steps to disassociate themselves: pg L/77-81. The case of Beynon does not assist the respondent since the EAT upheld the award of costs against the paying party despite finding that the trade union representative had acted for collateral purposes.[25]Mr Pincott further submitted that there had been no costs warnings in this case. Whilst we accept that this could be a factor to take into account it is not a precondition of an application for costs. In this case on 24 September 2025 the claimant had applied to strike out the respondent’s response on the grounds that the respondent was not actively pursuing its defence and /or was in breach of tribunal orders. This should have put the respondent on notice of the risk of costs which is a less draconian sanction than striking out its defence and is an option before a tribunal under rule 6. Further the claimant did apply for costs on 18 October 2024. What amount of costs to award Additional communications[26]The claimant has applied for costs of £621 for 8 communications with the respondent’s representative to prepare the matter for the final hearing (8 units), drafting the cost warning (15 units) and a telephone call with the respondent’s representative (4 units). Whilst the particular communications being relied upon have not been identified we noted that the following emails sent by the claimant’s solicitor concerned the preparation of the hearing bundle: 16 October 2024 at 13:40 pm (pg 153); 17 October 2024 at 10:04 and 16:09 (pgs 157 and 164); 18 October 2024 at 12:44, 12:49, 13:02, 13:19, 13:36, 13:50 and 15:10 (pgs 170-171, 173, 175, 179, 181, and 187). The attendance note of the telephone call with the respondent’s solicitor on the 18 October 2024 concerned the problems that the respondent had with their email system and the delivery of the claimant’s bundle: pg 190. We noted that only half of the costs application dated 18 October 2024 (pg 165-168) related to the respondent’s failure to comply with tribunal orders, and therefore deduct 7 units.[27]Adopting a broad brush approach we award £4601 plus VAT. Preparing the final hearing bundles[28]We agree that the respondent should pay the costs incurred by the claimant’s solicitor in preparing their own final hearing bundle and providing hard copies for the tribunal. The claimant only incurred these costs because of the respondent’s failure in producing an agreed hearing bundle, in repeated breach of tribunal orders.[29]The respondent submitted that no costs should be awarded because the respondent had served its bundle on the claimant on 18 October 2024. This situation was not the fault of the claimant and had only arisen due to the respondent’s email security system that no-one had checked.[30]The respondent did not challenge the amount of costs the claimant has sought and therefore we award £8,005.15 plus VAT. Counsel’s fees for the delay in the start date to day 4.[31]The claimant had claimed costs of £11,000 for counsel’s fees. This was based on the difference in Mr Horan’s brief fee and refreshers for a 5-day hearing ((£15,000 plus refreshers for 4 days at £2000 per day) and for an 8-day hearing (£20,000 plus refreshers of 7 days at £2000 per day).[32]However, the hearing had originally been listed for 8 days not 5 days and Mr Horan accepted that the 8-day brief fee had already been incurred at the start of the hearing. Therefore the claimant suffered no loss from the decision to reduce the number of hearing days on day 1 of the hearing.[33]We considered that the costs of attending day 1 would have been incurred in any event. Had the parties being ready to proceed on day 1, the tribunal would 1 20 units at £23 per unit have spent the first day dealing with other preliminary matters and reading into the bundle and witness statements. Whilst we accept that day 1 was in fact spent dealing with the claimant’s applications, the tribunal was able to make up the time in days 2 and 3. Had the evidence commenced on day 2 then it was likely that the evidence and submissions would have finished on day 6, the last two days being set aside for deliberation, instead of day 8. The consequence to the claimant of our decision to start hearing the evidence on day 4 instead of day 2 was two extra days of refresher fees. Therefore we award £4,000 plus The failure to collect the hearing bundles on conclusion of the hearing (application 1 paragraph 3.4)[34]The claimant has applied for costs of £150.50 plus VAT arising out of the failure of the respondent to collect the hearing bundles from the employment tribunal pursuant to an agreement between the parties made on 29 October 2024: pg 191. As a result of this failure the tribunal destroyed bundles. The application is made under rule 74(2)(a) (unreasonable conduct).[35]We noted that there was correspondence on the tribunal file from the respondent’s representative to the tribunal (which was not copied to the claimant) confirming that the bundles could be destroyed. Whilst it would have been courteous for the respondent to have informed the claimant of this decision, we do not consider that this was sufficiently serious to meet the threshold of unreasonable conduct. The costs of the application to postpone (application 1 paragraph 3.4)[36]The claimant has applied for costs of £110.40 plus VAT arising out of its application to postpone the hearing on 25 September 2024 under rule 74(2)(a) (unreasonable conduct).[37]We do not agree that costs should be awarded on this basis, since the claimant’s application to postpone was rejected by EJ Siddall on the 7 October 2024: pg L/75. The reason given was that “at this stage the claimant’s email suggests that a trial of the issues may still be possible notwithstanding any alleged failure to comply with directions” . If a trial of the issues was still possible within the time period then an application to postpone on the basis that a fair trial was no longer possible was unlikely to succeed. Indeed the strike out application before us also failed because even on the first day of the hearing we considered that a fair trial was still possible within the trial listing.[38]Further we have found that the claimant’s former representatives were responsible in part (albeit to a lesser extent) for the delays in preparing for the hearing prior to 25 September 2024 and that the claimant’s current representatives were at fault for not informing the respondent of the change in solicitors on 20 September 2024. Prior to receipt of the applications on the 25 September 2024 the respondent’s representative had been in settlement negotiations with the claimant’s former representative which were at an advanced stage, a settlement having been agreed in principle. Had the claimant’s solicitors contacted the respondent before making the application then there is a chance that the parties would have been able to cooperate with each other in agreeing steps to be taken for the final hearing and an application to postpone may not have been necessary. Costs warning (application 1 paragraph 4)[39]The claimant has applied for costs of £2,013.38.38 plus VAT which it claims represents 35% of the cost of pursuing this the claim to a hearing under rule 74(2)(a) (unreasonable conduct) and /or rule 74(20(b) (no reasonable prospect of success). It is understood that the unreasonable conduct relied upon is that the respondent pursued an unmeritorious defence.[40]When considering this matter we noted that the costs warning alleged that the respondent was dishonest. No such finding was made by the Tribunal. Further, the costs warning referred to the students being “very forthcoming” about Ms Woodman’s conduct in their meeting with Mr Coyle on 4 January 2024. We have made findings that Mr Coyle repeatedly asked the students for examples and that they were not very forthcoming since the only example that they could provide was the ‘head tapping incident’: pg 84 (Judgment para 45). Mr Coyle’s view at the time was that what the students informed him was open to interpretation: pg 84 (Judgment para 46). Whilst the tribunal has concluded that the head tapping was an act of discrimination that is with the benefit of additional evidence: pg 83 (Judgment para 42).[41]We accept that in relation to some of the issues there were some glaring omissions in the statements of the respondent’s witnesses and in relation to some of these omissions negative inferences were drawn. However, it does not follow that the respondent’s defence in relation to those issues was without merit. Discrimination cases are highly fact sensitive. We noted that the claimant did not succeed on all her claims and our judgment was based on consideration of all the evidence not just whether a witness was called or whether an issue was addressed in a witness statement. Therefore we do not consider that the respondent’s defence was wholly without merit.[42]Further, for similar reasons, we do not consider that it would have been clear at the commencement of proceedings that the respondent’s defence had no reasonable prospect of success. Cost of preparing the costs application (application 1 paragraph 5)[43]The claimant has applied for costs of £966.00 plus VAT for preparing the first costs application 1. Since the majority of the application for costs has not succeeded, and the respondent has been put to additional expense of defending those applications which did not succeed, we have used our discretion not to award costs on this basis. Cost of instructing a joint medical expert able to comment on the claimant’s neurodegenerative condition (application 2)[44]The claimant has applied for costs of £1,081 plus VAT for the time spent trying to find a suitable expert that could address the impact of any neurodegenerative condition that the claimant may have, under rule 74(2)(a) (unreasonable conduct).[45]On 19 December 2025, at the preliminary (case management) hearing to discuss instructing a joint expert, the tribunal granted the respondent’s application that the expert be asked to address the impact of any neurodegenerative condition that the claimant may have.[46]On 10 March 2025 the claimant disclosed to the respondent a discharge letter from Dr Solway dated 15 September 2023 which noted that the claimant “does not have a confirmed moderate to severe brain injury or long-term neurological condition”: pg 10. As a result the respondent’s solicitors wrote to the claimant’s solicitors asking “what evidence does the claimant rely on in respect of the neurodegenerative condition”. The claimant informed the respondent that it had never been her case that she had a neurodegenerative condition and the parties agreed that the expert did not need to comment on this condition.[47]We considered the information before the respondent at the time that the application was made. During the liability hearing the claimant admitted that she had a head injury that had caused memory loss. The medical evidence in the liability hearing bundle had included a letter dated the 27 January 2023 which stated “the CT head dated 6/1/2023 reveals focal cortical atrophy in the frontal region”: pg L/289. This is what the respondent relied upon when making the application. The respondent was unaware of Dr Solway’s letter dated 15 September 2023 because that had not yet been disclosed to them. We also take into account the claimant was seeking around £480,000 in damages, including damages for personal injury: pg L/1517d. Therefore it was proportionate for the respondent to seek to explore all pre-existing medical conditions that the claimant may have. We noted that once the respondent had been provided with evidence that the claimant did not have a neurodegenerative condition, it acted swiftly in informing the claimant that it was no longer pursing the matter. Therefore we did not consider that the respondent had acted unreasonably and award no costs on this basis. Ability to pay[48]Mr Pincott did not address us on the ability of the respondent to pay under rule 82, but did ask us to take into account the overall remedy award “if anything near £600,000” being claimed by the claimant, when deciding whether to award costs. We have taken into account that the remedy award that we have made is a third of what the claimant sought. We also took into account that the amount of costs awarded was significantly less than was being sought and relatively modest. Further the respondent is an FE college, and despite evidence of a reduction in public funding (see Remedy Judgment) we considered that they are still likely to be able to pay the sum that we have ordered.
CONCLUSION
[49]The claimant’s first application for costs succeeds in part, and the respondent is ordered to pay the claimant’s costs of £12,465.15 plus VAT. The amount awarded is for:49.1 additional communications, totaling £460.00 plus VAT;49.2 preparing the final hearing bundles, totaling of £8,005.15 plus VAT; and49.3 counsel’s fees for the delay in the start date to day 4, totaling £4,000 plus[50]All other costs sought by the claimant do not succeed. This Judgment has been approved by: