Employment Judge SudraMs. A. Greenley (instructed by Counsel) for respondentDate 16 March 2026
JUDGMENT
The decision of the Tribunal is that the Claimant’s complaints of,(i) Direct disability discrimination is not well founded and stands dismissed. 1 6th and 9th March 2026 in Chambers.(ii) Direct age discrimination is not well founded and stands dismissed.(iii) Direct sex discrimination is not well founded and stands dismissed.(iv) Harassment related to disability is not well founded and stands dismissed.(v) Harassment related to age is not well founded and stands dismissed.(vi) Harassment related to sex is not well founded and stands dismissed.(vii) Discrimination arising out of disability is not well founded and stands dismissed.(viii) Failure to make reasonable adjustments is not well founded and stands dismissed.(ix) ‘Ordinary’ unfair dismissal is not well founded and stands dismissed.(x) Notice pay is not well founded and stands dismissed.(xi) Unauthorised deduction from wages is not well founded and stands dismissed.
REASONS
Relevant Law
[1]The Claimant began Acas early conciliation on 27th March 2023 (‘Day A’) and was issued with an Acas early conciliation certificate on 8th May 2023 (‘Day B’). On 8th June 2023 the Claimant presented her ET1. The Respondent defended the claims by way of an ET3 and Grounds of Response on 20th July 2023 and an amended Grounds of Response on 28th March 2024.
The Issues
[2]The Claimant’s claim is for:(i) Direct disability discrimination (s.13 Equality Act 2010 (‘EqA’));(ii) direct age discrimination (s.13 EqA);(iii) direct sex discrimination (s.13 EqA);(iv) harassment related to disability (s.26 EqA);(v) harassment related to age (s.26 EqA);(vi) harassment related to sex (s.26 EqA);(vii) discrimination arising out of disability (s.15 EqA);(viii) failure to make reasonable adjustments (ss.20 and 22 EqA);(ix) ‘ordinary’ unfair dismissal (ss.94 and 98 Employment Rights Act 1996 (‘ERA’));(x) notice pay is not well founded and stands dismissed;(xi) holiday pay is not well founded and stands dismissed; and(xii) unauthorised deduction from wages (s.13 ERA). The parties had agreed a final List of Issues [B2/458-471] and it is appended to this Judgment.
Preliminary Matters
[3]Ms. Greenley was unable to attend the first day of the Hearing due to unforeseen circumstances and asked, via those instructing her, if she could attend via CVP going forward or at least until the fourth day. I offered the parties the option of a complete CVP Hearing but the Claimant stated that she had specifically requested an in-person Hearing to ensure that she could effectively participate. However, the Claimant did not object to Ms. Greenley attending via CVP so I converted the Hearing into a hybrid hearing on the proviso that somebody from the Respondent’s solicitors was in attendance, in-person, to maintain absolute propriety.[4]The Claimant stated that she did not agree the cast list, chronology, and reading list produced by the Respondent. I told the Claimant that she was at liberty to produce her own versions if she wished or highlight areas of dispute. On the second day, the Claimant provided me with a chronology she had prepared. Reasonable Adjustments[5]As a reasonable adjustment for the Claimant, Employment Judge Hart had reduced the hours of each Hearing day to start at 9.30am and finish at 1.20pm with a 10 minute break every one hour and 10 minutes so that the Claimant would not become fatigued.[6]The Claimant told me that she would require a 15 minute break every one hour and 10 minutes, more time to respond to questions, and more time to read documents she was taken to. I granted these adjustments and encouraged the Claimant to speak up if she needed extra breaks or any further adjustments. The Claimant did, quite rightly, request additional breaks throughout the Hearing and such requests were acceded to.[7]The Claimant’s mother asked if the Claimant could have a ‘stress ball’ with her whilst giving evidence and I stated that that was not a problem. The Claimant also – at times – used a sheet of coloured paper to more easily navigate text.[8]During her evidence, the Claimant was hindered by the room lighting so I allowed the lights on ‘her side’ of the Tribunal room to be switched off. This assisted the Claimant.[9]On the fourth and fifth day of the Hearing the Claimant was experiencing nausea. Therefore, start times and break times were adjusted so that the Claimant could actively participate in the Hearing and when the Claimant became emotional, she was given time to compose herself. Procedure and Documents[10]I had before me:(a) An agreed Hearing bundle consisting of 528 pages;(b) a second Hearing bundle of 506 pages;(c) a cast list, chronology, and reading list produced by the Respondent;(d) a chronology produced by the Claimant;(e) a ‘Witness Statement Cross-Reference Sheet’ from the Claimant; and(f) further documents from the Respondent in respect of the Claimant’s training record, holiday pay, and annual leave and an explanatory note regarding the Respondent’s Sickness Pay Processing Policy.[11]I also had written witness statements and heard live evidence2 from: For the Claimant(i) The Claimant;(ii) Daniel Gresley;(iii) Charlotte Keeble;(iv) Gary Wells; For the Respondent(v) Samantha Rigby;(vi) Michael Marsh;(vii) Karen Stone; and(viii) Amy O’Reilly.[12]Upon the conclusion of evidence, the Claimant and Respondent made oral closing submissions and also provided written submissions.[13]I notified the parties at the outset of the Hearing that I would only read documents that I was specifically referred to and would only read documents referred to in witness statements insofar as they were relevant. Relevant Findings of Fact[14]The following findings of fact were reached by me, on a balance of probabilities, having considered all of the evidence given by witnesses during the Hearing, 2 Ms. Stone did not attend the Hearing to give live evidence, due to medical reasons, and therefore, I attached such weight to her evidence as was appropriate in the circumstances. including the documents referred to by them, and taking into account my assessment of the witness evidence.[15]Only findings of fact relevant to the issues, and those necessary for me to determine, have been referred to in this Judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. I have not referred to every document I read and/or was taken to in the findings below but that does not mean it was not considered if it was referenced to in the witness statements/evidence and considered relevant.[16]In the interests of proportionality and in keeping with the Overriding Objective, I have confined my findings of fact to matters in dispute and those relevant for me to reach a fair determination of the complaints. Disability[17]The Claimant says that she is disabled with the impairments of: Attention deficit hyperactivity disorder (‘ADHD’); autism; dyslexia; anxiety; and a sleep condition.[18]The Respondent accepts that the Claimant is disabled by virtue of ADHD, autism, and dyslexia but does not concede disability in respect of anxiety and a sleep condition during the material times (January to December 2023).[19]In evidence, the Claimant accepted that she was not diagnosed with insomnia until August 2025. From the Claimant’s available GP records there are two references regarding the impairment of a sleep condition:(1) To a sleeping problem on 21st January 2019; and(2) insomnia on 28th September 2023. There was an attempt to refer the Claimant to a sleep medicine service in January and March 2023 but the referrals were rejected.[20]The Claimant also stated in in evidence that she assisted in looking after a child until he went to school which was at around 8.45am. Therefore, it is valid to conclude that at least by 8.45am the Claimant would be awake and sufficiently alert to be able to carry out tasks.[21]There was a paucity of evidence to support the Claimant’s position that she had the disability of anxiety, at the material times, per s.6 EqA. There was no formal diagnosis of anxiety before me and entries in the Claimant’s GP records refer to stress-at-work. The Claimant's evidence was that anxiety became worse after she was dismissed; this would not be unusual as when one is dismissed it is very likely that one would experience some form of anxiety or anxiousness. A letter from the claimants GP surgery, dated 4th June 2025, supports this contention [B2/424].[22]The relevant law regarding the decision I have to make can be found at s.6 EqA and in the appellate decision of case of J v. DLA Piper UK LLP [2010] ICR 1052.[23]Applying the law to the facts before me, I find that the Claimant was not a disabled person under s.6 EqA with the impairments of anxiety and a sleep condition. Even if I am wrong about this, any error does not affect the conclusions I have arrived at below. Employment[24]The Claimant was employed by the Respondent on 11th October 2021, as a service driver, and was based at the Respondent’s Larkfield Mill site in Aylesford (‘the site’). The Claimant was referred to the role by her father, Daniel Gresley (trunking driver); Mr. Gresley remains employed by the Respondent. The Respondent is a healthcare waste services provider which offers specialist waste transport, collection, and disposal services for industrial and household waste. The Claimant’s employment terminated on 15th December 2023 when she was dismissed for misconduct.[25]Upon the commencement of her employment, the Respondent provided the Claimant with the terms and conditions of her employment [179] and, as is common with many employers, the Claimant’s employment was subject to a six-month probationary period. The Claimant’s normal hours of work were 180 or 225 hours per month depending on whether a month consisted of four or five weeks (equating to a 45-hour working week over five days). Whilst the terms and conditions did not state specific start or end times to the working day it stated that the Claimant’s hours of work were in-line with a designated shift pattern. At the time the Claimant began her role, she was ‘onboarded’ and linemanaged by Charlotte Keeble (service co-ordinator) and then line-managed by Karen Stone (facility manager). Ms. Stone’s line-management of the Claimant continued until 30th April 2022; after which point she was line-managed by Charlie Ackerman (service manager).[26]As part of her ‘onboarding’ the Claimant informed Ms. Keeble that she had the impairments of ADHD, autism, and dyslexia. Ms. Keeble was satisfied that the Claimant’s impairments would have no adverse effects on her ability to carry out her role and the Claimant began the job with enthusiasm.[27]As a service driver, the Claimant’s duties included driving a 3.5 tonne truck to collect waste from clients’ premises and then bringing the load back to the site for disposal. Due to the variety of clients the Respondent provided services to, a driver was required to ensure that his or her shift coincided with the business hours of their clients and had to ‘carry out daily schedules to agreed routes and timings’ [B2/456]. Therefore, a driver on a particular route would be aware of the number of ‘stops’ needed to be made along the route and the time it should take. Due to the fact that clients had differing hours of business, drivers did not have a uniform start time but all drivers were expected to start work at a time which would enable them to carry out their duties and maintain a good standard of service. Notwithstanding this, all of the Respondent’s routes had expected start times to ensure effective service delivery.[28]Unfortunately, the Claimant’s employment did not get off to a flying-start. Mrs. Keeble, as the Claimant’s then line-manager, conducted a probation meeting with the Claimant on 8th February 2022. The meeting should have been held in April 2022 but was brought forward as the Respondent had concerns regarding the Claimant.[29]The concerns the Respondent had in respect of the Claimant related to: ‘Quality and accuracy of work’ (the Claimant had had a blameworthy accident which could have been avoided); ‘Attendance;’ and ‘Timekeeping’ (starting later than requested) [B1/193]. At the probation review meeting Mrs. Keeble discussed the Respondent’s concerns with the Claimant and there was mutual agreement that in the next three months, there would be no further blameworthy accidents, no start time later than 7.00am, and that the Claimant’s attendance would be monitored. Both Mrs. Keeble and the Claimant signed the probation review form.[30]Unfortunately, there was little improvement in the Claimant’s timekeeping which had resulted in complaint’s from the Respondent’s Customers. On 23rd August 2022, Ms. Stone met with the Claimant at an informal meeting. Ms. Stone explained that it had been noted (from the Claimant’s timesheets and her own observations) that the Claimant had not been starting her shift at the agreed time and on occasion the Claimant had not started her shift until after 10.00am. The Claimant explained that she had been experiencing difficulties falling asleep which, in turn, affected her being able to awake and attend work to begin her shift at the prescribed time.[31]During the meeting the Claimant also told Ms. Stone that she had ADHD. Ms. Stone enquired if the Respondent could put any supportive measures in place and the Claimant did not specify and particular adjustments but ventured that a later 8.00am start time would be reasonable (previously she had agreed with Ms. Keeble that she would start at 7.00am). Following the meeting Ms. Stone issued the Claimant with a ‘Letter of Concern/Improvement Notice’ on 26th August 2022. The Letter of Concern stated that: ‘I write following our meeting on 23rd August 2022 with myself to express my concerns regarding your current starting times each day. It was brought to your attention that this is then having an effect to servicing customers on your route due to customer sites closing before you can attend due to starting later in the day and is unacceptable and I am therefore extremely disappointed. These issues not only affect your own work, but also affects the rest of the team. Going forward you need to be in work no later than 08:00AM and this will be monitored.’; and ‘Please note that this letter of concern will be kept on your personnel file for 12 months. If your timing continues to be of an unacceptable standard or fail to follow process, you should be aware that disciplinary action may be taken in line with Company procedures.’[32]Soon after the Claimant was issued with the Letter of Concern, her linemanagement moved to Mr. Akerman. The Claimant entered into discussions with Mr. Akerman vis-à-vis the route she should drive and expressed a preference for route 300 which the Respondent classed as a local route and which required a later start time than many of the other routes operated by the Respondent. Notwithstanding what Ms. Stone had stated in the Letter of Concern (regarding an 8.00am start), Mr. Akerman agreed with the Claimant that she could adjust her start time on route 300 to begin between 8.00am and 9.00am. Mr. Akerman also agreed that the Claimant could take her work van home so that she would not need to travel to the site each morning in order to begin her shift.[33]Unfortunately, despite Mr. Ackerman agreeing that the Claimant could have a later start time, the Claimant’s timekeeping did not improve and she routinely started her shift later than the timescale prescribed by Mr. Ackerman. In or around January 2023, Joshua Hall (service co-ordinator) joined the Claimant’s team. Despite the Claimant, in her evidence, denying that Mr. Hall held a senior position to her – he did. The Claimant was a service driver and Mr. Hall held a supervisory role akin to Ms. Keeble who had ‘onboarded’ the Claimant.[34]Mr. Hall witnessed the Claimant failing to start her shift between 8.00am and 9.00am as agreed. Therefore, on 16th January 2023 Mr. Hall had an informal discussion with the Claimant and informed her that he was concerned that the Claimant was not using her vehicle, and hence not commencing her route, until circa 10.00am. Mr. Hall explained that if the Claimant did not start her route between the times agreed with Mr. Ackerman, there were repercussions in that other colleagues would have to be utilised to ‘achieve optimal service.’ The Claimant informed Mr. Hall that she was having sleeping difficulties and he accepted that this would be a contributory factor to the Claimant starting her shift later than expected. Whilst the Claimant held a mild resentment toward Mr. Hall for what she perceived was a rebuke, she nevertheless said she understood and agreed to abide by the agreed schedule.[35]Mr. Hall may have been matter-of-fact when he spoke with the Claimant but he did not threaten her or belittle her impairments. Mr. Hall would have been remiss in his duty if he did not remind the Claimant of her obligations especially as he was aware of her past punctuality issues and agreement with Mr. Ackerman.[36]Regrettably, Mr. Hall’s words with the Claimant failed to have the effect he desired. In the period 23rd to 30th January 2023, the Claimant did not begin her shift earlier than 9.30am and on some days, as late as 10.30am. Mr. Hall was confounded by the Claimant’s persistent late starts, especially, as he had tried to informally resolve the situation with the Claimant and had explained the operational difficulties her impunctuality was causing.[37]Mr. Hall was concerned that the Claimant’s continued lateness would impact on relations with customers. The Respondent contracted with customers by way of a service level agreement which stipulates expectations (i.e. when and by which time collections would be made) and what recourse a customer would be due in the event of the Respondent defaulting on contractual agreements – such as financial compensation – and ultimately, a customer terminating their contract with the Respondent. Thus, on 30th January 2023 Mr. Hall had another meeting with the Claimant.[38]At this meeting Mr. Hall explained to the Claimant that he had checked the Masternaut tracker record of her vehicle movements and that it confirmed that despite their previous meeting, the Claimant was still continually staring her route significantly after the expected start time. Mr. Hall went on to explain to the Claimant that he was concerned about breaching service level agreements due to her repeated tardiness in embarking upon her route. Mr. Hall went to state that if the Claimant’s timekeeping did not improve he would be forced to review whether the Claimant could continue with her route as the Respondent’s service level agreements with customers would not be fulfilled.[39]At the same meeting Mr. Hall issued the Claimant with a ‘file note’ which is record of discussions and agreements with an employee which remains on an employee’s personnel file for 12 months. If there is any further repeating of the behaviour a file note is issued for, within the 12 month period, the matter could be escalated and the respondent’s disciplinary procedure invoked. The file note [B1/270] stated that the Claimant was to begin her route by no later than 9.00am in the coming week and if she did not, he would have to ‘move things around on SQ.’ In light of the Claimant’s repeated failures to adhere to agreed latest start times, the issuance of a file note by Mr. hall was perfectly reasonable in the circumstances. However, the Claimant was not happy with being issued with the file note and refused to sign it.[40]Following his meeting with the Claimant, on 30th January 2023, Mr. Hall sent an email to Emma Keeble3 (HR business partner and litigation specialist) and copied in Mr. Ackerman and Michael Marsh (area service manager). Mr. Hall outlined what had occurred at the meetings with the claimant on 15th and 30th January 2023 and sought guidance on how to best support the Claimant.[41]Notwithstanding that Mr. Hall had issued the Claimant with a file note and made clear his expectation that the Claimant would, in the following week, start her route by 9.00am at the latest, she failed to abide by Mr. Hall’s instruction. In the working week following the 30th January 2023 meeting, the Claimant did not commence her route by 9.00am on a single day and the earliest she began her route was at 9.45am an on some days at 10.00am; one hour after the latest time she had been instructed to start her route. 3 No relation to Charlotte Keeble.[42]Therefore, on 3rd February 2023 Mr. Hall emailed Emma Keeble and Messrs. Akerman and Marsh stating, ‘So on Monday I issued Ellie with a File Note for failing to follow managers instruction and not starting at the given time window, I asked Ellie in the meeting that she would need to start between 08:00hrs and 09:00hrs for the rest of the week or risk that I would be forced to move things around in regards to her route. She has failed every single day and not started until 09:45am at the earliest and again around 10:00am average start time. So I will be calling Ellie in today to be informing her that she will no longer be running route 300 on SQ. and will be now down as a spare driver which means she wont (sic) have her own van to take home as all spare vans are to be stored in the yard unless they are on route the following day, and spare drivers are to report to me at 08:00 - 09:00hrs at Larkfield and be given a route or jobs for the day. Can you see any issues from a HR stand point, I'd also like to invite Ellie to a formal meeting to start the investigation process for Monday 06/02/2023.’ Occupational Health[43]On 10th February 2023, Emma Keeble referred the Claimant to Occupational Health (‘OH’) for an assessment and informed OH that, ‘Ellie has informed us that she has ADHD, autism, sleep paralysis and Raynaud's disease - are these diagnoses confirmed? … Is Ellie able to do any other role we may have available (such as working in the warehouse)? Ellie has struggled to start work at the required time, so we have adjusted her role to allow her to start from home and start at a later time within a 1 hour window between 8 and 9 am, but she continues to be unable to start at this time due to her trouble sleeping. Her late starts are causing issues with our customers. What causes the trouble sleeping and is there anything further Ellie can be doing to help herself with this? If Ellie is struggling with the working hours, what hours could Ellie comfortably work? Is there anything further we need to understand about Ellie's conditions or her ability to work that we have not already asked above?’[44]The Claimant was assessed by Occupational Health on 22nd February 2023 [B2/388] and the Dr. Garwood concluded that, ‘Based on the information obtained at assessment, in my opinion Ms Gresley is currently fit to remain at work with adjustments to remain in place for the foreseeable future. I recommend allowing Ms Gresley to continue with routes and customers that are familiar to her, so she is able to plan her day and manage her time. She finds having a daily routine helps her to plan her day and manage her time efficiently and this reduces her anxiety. She tells me that she is comfortable with route 300 and would like to remain on this route. If any changes to her routes are introduced, please allow extra time for adjustment and provide as much notice as possible. Ms Gresley tells me that when she is given new routes or new customers (new area) her tasks will take her longer to complete. When extra routes are added to her day this causes her to feel anxious. I recommend allowing flexibility in start times as Ms Gresley suffers with an erratic sleep pattern and may need to adjust her start time to ensure that she has had adequate rest and sleep the night before starting her shift.’ (My underlining). Grievance[45]On 15th February 2023 the Claimant lodged a grievance against Mr. Hall in an email to Emma Keeble. The grounds of the Claimant’s grievance were, ‘disability discrimination, threatening behaviour, intimidation, indirect sex discrimination, misogyny and victimisation’ and it was predominantly directed at Mr. Hall.[46]The Claimant grieved that she struggled with early morning starts and that Mr. Hall had been dismissive of her impairments and threatened to make her a spare driver. In her grievance the Claimant also alleged that Mr. Hall had ‘grinned and sniggered’ in her face which resulted in her feeling intimidated.[47]Emma Keeble emailed the Claimant, on 21st February 2023, acknowledging her grievance and informed the Claimant that a hearing manager would contact her. Emma Keeble also told the Claimant that whilst the grievance was extant, Gary Emery, and not Mr. Hall, would be charged with her day-to-day management.[48]Andrew Hussey (Service Manager SID London) was charged with dealing with the Claimant’s grievance and he met with her on 13th March 2023 and the Claimant was accompanied by Karen Stone (Facility Manager). At the meeting Mr. Hussey discussed the Claimant’s grievance, asked relevant questions for clarity, and allowed the claimant to explain the context and details of the allegations she had levelled. At separate meetings, Mr. Hussey also interviewed: Mr. Hall; Mr. Akerman; Elenora Biondi (Admin); and Martin Rogers (Service Co-ordinator).[49]On 27th March 2023, Mr. Hussey send the Claimant a grievance outcome letter. Mr. Hussey confirmed that he had spoken with Mr. Ackerman who told him that he was unaware of the Claimant’s health issues except her problems in respect of sleeping. Mr Hussey also confirmed that he had spoken with Mr. Hall who also was unaware of any underlying medical conditions except the Claimant’s issues regarding sleep. Mr. Hussey concluded by informing the Claimant that her grievance was unfounded and therefore, not upheld. He informed the Claimant of her right to appeal his decision and that any appeal should be submitted within five days of receipt of his letter.[50]The Claimant did not appeal Mr. Hussey’s decision and on 9th June 2023, Sarita Roda (HR Co-ordinator) emailed the Claimant and stated that as she had not heard from the Claimant regarding an appeal to her grievance outcome the grievance would be closed. Road Traffic Accident[51]Prior to embarking upon their route, drivers at the Respondent conducted a ‘walk around’ checklist of their vehicle to confirm roadworthiness and to indicate or flag-up any issues. On 15th, 16th, and 17th February 2023 the Claimant conducted a ‘walk around’ and on her checklist, recorded that there was a ‘break wear message on dash’ (as in the vehicle’s dashboard).[52]Prior to February 2023 the Claimant had completed various training with the Respondent and a record was provided at [B2/452-455]. In this version of the Claimant’s training record two columns (on the right hand-side) had been omitted due to an administrative/printing error. Therefore, during the Hearing the Respondent provided the Claimant and me with a complete version of the record. At first glance, it appeared that the Claimant completed her training at unusual hours of the night and early morning and on dates which do not exist. However, this peculiarity was explained by Respondent who confirmed that the time/date format of the training record was an Americanised format which, somewhat curiously, states the month first, then the day, followed by the year. This must be correct because, as an example, one of the Claimant’s training dates is cited as ‘10/25/2022’ which is an impossibility (in the UK) so the only logical explanation is that the date refers to 25/10/2022 which is our method of date citation.[53]On 4th November 2021, 7th February 2022, and 9th January 2023 the Claimant had completed ‘Stop Work Authority’ (‘SWA’) training. SWA is a process whereby a driver could decline to drive a vehicle if he or she felt it was unsafe to do so. The Claimant was aware of the SWA procedure and had utilised it when it was unsafe for her to drive due to inclement weather conditions.[54]On 17th February 2023, the Claimant completed her ‘walk around’ checklist and began her shift at around 9.30am. Whilst driving on her route the Claimant, unfortunately, was involved in a road traffic accident with another third-party vehicle. The Claimant was interviewed in respect of the collision in which she provided her version of events [B1/320] and the Respondent investigated the incident with. The Claimant’s interview and the investigation was conducted by Paul Summerz (investigating officer).[55]On 8th March 2023, Martin Rogers met with the Claimant and raised a concern regarding the Claimant’s continued lateness in beginning her route and reminded her of the need for her to begin her route by 9.00am. The Claimant’s timekeeping did not improve and on, 13th March 2023, Mr. Rogers emailed Emma Keeble and Mr. Akerman stating, ‘Good afternoon, Just a short update regarding Ellie. On 10/03/2023 Ellie did not show up for work until 10:38. This was after me reiterating that she needed to start at 09:00 as stated in our meeting on 08/03/2023. On 13/03/2023 Eliie text me at 09:30 (sic). The text stated and I quote "Sorry I haven't had chance to call Martin. I am on my way in and won't be much longer". She arrived at work at 10:00 and made a point of letting me know she was in.’[56]Mr. Summerz found that the Claimant had failed to check if the road ahead was clear which resulted in her colliding with the third-party vehicle. Mr. Summerz concluded, on 21st March 2023, that, ‘This is a blameworthy accident whereas the 3rd party was stationary while our TM make (sic) contact with their vehicle.’[57]On 22nd March 2023 the Claimant attended a welfare and capability meeting with Mr. Marsh with Ms. Stone as her companion. Mr. Marsh discussed the Claimant’s report from OH with her and asked her to expand on any difficulties she may be experiencing with her role. The Claimant mentioned that she had difficulties with falling asleep which would result in her feeling tired in the mornings. Emma Keeble, who was also in attendance, stated that as the Respondent wished to decide how it could enable the Claimant to cover her routes in a manner which would support her impairments, more time would be required for discussion ad it was agreed that he meeting would be adjourned.[58]On 23rd March 2023, the Claimant attended a disciplinary hearing in respect of her road traffic accident. The meeting was chaired by Gary Allan (Service Manager) and the Claimant was accompanied by Ms. Stone. The allegation against the Claimant was: ‘Serious vehicle incident whereby you hit a third party vehicle.’[59]Mr. Allan discussed the accident with the Claimant, asking questions where appropriate, and gave her an opportunity to present her version of events. Mr. Allan explained that as the Claimant had collided with a stationary vehicle and pushed it on to a ‘live’ road, the collision was a serious incident which could be classed as gross misconduct. The Claimant disagreed with Mr. Allan’s classification.[60]After a short adjournment Mr. Allan informed the Claimant that he had considered the evidence and her submissions and decided to issue her with a written warning which would remain on her file for 12 months. The outcome was confirmed to the Claimant by letter, dated 27th March 2023, and she was informed of her right to appeal the decision. The Claimant did not appeal.[61]The adjourned welfare and capability meeting resumed on 24th March 2023. The Claimant confirmed that she was happy, and preferred, to continue working on route 300 and that any new changes on the route would not cause her any issues. Mr. Marsh then discussed start times with the Claimant and stated that on route 300, the start time would need to be between 8.00am to 9.00am in order to ensure that the Respondent maintained service delivery expectations for that route.[62]The Claimant said that she could not commit to a start between 8.00am and 9.00am and that she may be able to work on the route if a later start time was agreed and suggested a latest start time of between 9.00am and 10.00am. Mr. Marsh explained to the Claimant that the times she had suggested would not be feasible for route 300 and that maybe alternatives could be considered such as a shorter route, being a spare driver, or an administrative role. Emma Keeble emphasised to the Claimant that she was a good worker and the respondent did not want to lose her but it was a balancing act between accommodating the Claimant, as much as the Respondent wanted to, and meeting standards of service delivery. The Claimant insisted that she did not want to drive other routes and wanted to remain on route 300 but that the latest start time would need to be adjusted. The Claimant also informed Mr. Marsh that she was a guardian for a child, whom her father had legal responsibility for, which had previously caused her to start her shift late. Mr. Marsh told the Claimant that being late for a shift due to looking after a child the claimant does not have legal responsibility for would not be an acceptable reason for a late start.[63]Mr. Marsh concluded the meeting by confirming that until an acceptable route was agreed, the Claimant could work in the office and her start time would be adjusted to between 9.00am and 10.00am. Mr. Marsh confirmed his discussion with the Claimant in a letter dated 14th April 2023.[64]Between 29th March and 19th April 2023, the Claimant was signed-off work sick with stress at work.[65]On 5th June 2023 the Claimant again attended a welfare and capability meeting accompanied by her father Daniel Gresley. The Claimant stated that having considered the options available to her, she did not wish to work in the plant or as a spare driver and wanted to remain driving route 300 as she was comfortable on it and that the other options discussed would exacerbate her ADHD and autism. The Claimant also stated that she was anxious about a hard 9.00am start because she had to care, sometimes, for a child at home. The Claimant explained that the child she cared for leaves the house at around 8.45am and she would be able to start work soon after that. Emma Keeble explained that if it was the odd late start that should not be a problem however, the Respondent was concerned about regular late starts after 9.00am.[66]The Claimant agreed to start her shift between 8.00am and 9.00am and Mr. Marsh informed her that if she was late, occasionally, she could inform someone and the Claimant elected to inform him. Emma Keeble asked the Claimant if she had had a driving assessment and the Claimant confirmed that she had completed one the previous week. With the agreement in place that the Claimant would start work, on route 300, between 8.00am and 9.00am, and would inform Mr. Marshall if she was going to be late, the meeting concluded. Mr. Marsh confirmed their discussion and decision in a letter to the Claimant on 7th June 2023.[67]Despite the adjustments made by the Respondent and the Claimant agreeing to start her shift between 8.00am and 9.00am, in the period 6th June 2023 to 27th June 2023, the Claimant only started her shift once before 9.00am and repeatedly missed collections from her route due to her lateness in beginning the shift.[68]As there had been no improvement in the Claimants punctuality she was invited to, and attended, an investigation meeting on 13th July 2023 with Nathan Moore (Service co-ordinator). Mr. Moore explained to the Claimant that the reason they had to meet is because the Claimant had not kept up with her agreement and that she had frequently started work later than the agreed 9.00am latest start time and only on two occasions had she started work before 9.00am. Mr. Moore also raised with the Claimant that she had not contacted Mr. Marsh when she was going to be late, as she had agreed to. The Claimant acknowledged that she had, on the majority of occasions, started later than 9.00am but said that she struggled because of her ADHD and autism and she confirmed that she had not contacted Mr. Marsh when she had been late. The Claimant also accepted that she had missed collections on her route. Final Written Warning[69]As there had been no improvement in the Claimants timekeeping or ability to start by her latest start time, the Claimant was invited to a disciplinary meeting which took place on 11th August 2023 which was heard by Mr. Marsh. The Claimant was represented by Phil Silkstone (trade union representative).[70]Mr. Marsh explained that all of the Respondent’s vehicles had a tracker and the tracker on the Claimant’s vehicle showed that around 90% of the time she did not start her vehicle, which in turn meant that she had not embarked upon her route, until after 9.00am. The Claimant said that because of her disabilities she was struggling to start by 9.00am and that she was doing her best but found it difficult. Mr. Marsh reassured the Claimant that whilst he understood the difficulties she was experiencing they were having a knock-on effect upon service delivery in that collections had been missed.[71]Mr. Silkstone suggested that the Claimant should have a latest start tome of 10.00am for a trial period. The hearing was then adjourned until 16th August 2023.[72]On 16th August 2023, the disciplinary hearing was resumed. Mr. Marsh discussed the Claimants late start times with her and explained why they were having an adverse effect upon service delivery. Mr. Marsh also explained that when the Claimant was late, which was the majority of times, there was a lack of communication from her which added to the confusion because he, nor her colleagues, knew whether or not she would be reporting to work. Mr Silkstone then again raised the subject of the Claimant being able to start at 10.00am.[73]After a brief adjournment Mr. Marsh informed the Claimant that having taken into account what she had told him and considered data in respect of her start times he had decided to issue her with a final written warning and that she would have five days to appeal his decision. He also informed the Claimant that she would be expected to start her shift at a latest time of 9.30am with a ‘key turn’ by 10.00am at the latest. This meant, that the Claimant should have been able to carry out her vehicle checks and begin driving on her route by 10.00am. The Claimant agreed to a trial of one month where she would start her duties by 9.30am and have a key turn by 10.00am. The final written warning would remain on the Claimant’s file for a period of 12 months and this, and the trial period, was confirmed in a letter sent to the Claimant on 18th August 2023. Second Road Traffic Accident[74]On 29th August 2023, whilst the Claimant was in the currency of a final written warning, she was involved in another collision with a third-party vehicle. Whilst driving on route 300 the Claimant had collided with the rear of another vehicle, causing it damage.[75]The Claimant reported the accident and an independent accident management company, Sopp and Sopp, produced a report of the accident [B/271] and found that the Claimant was at fault. The Claimant was signed off-work sick on 31st August 2023 until 14th September 2023.[76]Mr. Akerman carried out an investigation into the accident on 30th August 2023 but there was a delay in concluding the investigation due to the Claimant’s sickness absence. On 15th September 2023 the Claimant sent Mr. Ackerman a further fitness-for-work note which signed her off-work from 14th September 2023 up until 22nd October 2023. Aware that the investigation into the accident would be causing the Claimant stress, Mr. Ackerman emailed the Claimant on 11th October 2023 to see how she was, when anticipated returning to work and to enquire if she would be happy to answer some questions so he could conclude his investigation. The Claimant responded to Mr. Ackerman, on 18th October 2023, to say she still was not feeling well and would send him an updated fitness-for-work note. She also agreed to answer his questions and asked for time to do so.[77]Not having received a response from the Claimant Mr. Akerman on, 3rd November 2023, emailed the Claimant asking her when she would be able to answer the questions he had sent her. Mr. Akerman explained that he wanted to complete his investigation as soon as possible and therefore, asked the Claimant to respond by 6th November 2023. Mr Akerman explained that if he did not receive a response from the Claimant he may well have to complete his investigation with the information he already had available. On 7th November 2023 the Claimant emailed Mr. Ackerman responses to the questions he had previously sent her.[78]During the investigative process Mr. Ackerman had available to him, a statement from the Claimant, the independent Sopp and Sopp report, route location and speed data from Masternaut, and photographs of the location where the accident took place. Mr. Akerman conclusion was that there was a need for formal action.[79]The Respondent decided to deal with the latest incident via its disciplinary procedure and Samantha Rigby (HR Manager) appointed Amy O'Reilly (Service Manager) to chair a disciplinary hearing. Ms. O'Reilly was not based at the same location as the Claimant, had had no prior interaction with the Claimant, and was a neutral and impartial character in the process. Final Disciplinary Hearing[80]In preparation for the disciplinary hearing, Ms. O'Reilly perused the Respondent’s disciplinary procedure, Mr. Akerman’s investigation report (with the associated documents), the Sopp & Sopp report, and the notes and outcome of the Claimant’s previous disciplinary including (which had resulted in the issuance of a final written warning).[81]On 4th December 2023 Ms. O'Reilly emailed the Claimant and invited her to attend a disciplinary hearing which was to take place on 7th December 2023. Miss. O'Reilly attached a copy of the Respondents disciplinary policy to her email.[82]The Claimant responded to Ms. O'Reilly, on 6th December 2023, stating that she was still off from work due to stress and anxiety and would be unable to attend the disciplinary hearing. The Claimant also enquired why a disciplinary meeting was taking place at all and said that as she did not have a start time she should have been issued with a final written warning. The Claimant concluded her email by accusing the Respondent of not following its own procedure and wrote, ‘…all of this is being noted and will be in my tribunal hearing.’[83]On 7th December 2023, Ms. O'Reilly emailed the Claimant a letter inviting her to a disciplinary hearing scheduled for 12th December 2023, at 12.00pm, via Teams. The Claimant was informed that in addition to Ms. O'Reilly, Ms. Rigby would be in attendance to take notes and as the Claimant had been signed offsick, Ms. O'Reilly afforded the Claimant an opportunity to provide any evidence or submissions via email and attached to her letter questions that she intended to ask her at the disciplinary hearing. Ms. O'Reilly stated in her letter that the allegation to be determined would be ‘vehicle collision incident involving a third party.’ Ms. O'Reilly provided the Claimant with the relevant documents and advised her that she was able to be accompanied by a work colleague or trade union representative. She also informed the Claimant there as she had a live final written warning on file, if the present allegation was upheld the Respondent may dismiss her with notice. Finally, Ms. O'Reilly informed the Claimant that if she failed to attend the hearing it may be held in her absence and a decision made.[84]On 12th December 2023, 25 minutes before the disciplinary hearing was due to begin, the Claimant emailed Ms. O'Reilly informing her that she was still on sick leave and that she did not check her emails with any regularity. The Claimant said that she had ‘pre-existing commitments’ which meant that she could not attend the disciplinary hearing and also stated that she was not sure why she was being asked to attend a disciplinary hearing because there was no evidence suggesting that she was at fault.[85]Ms. O'Reilly did not have sight of the Claimants email prior to the disciplinary hearing, presumably, because she was in preparation for it. Ms. O'Reilly was alert to the fact that she had already granted the Claimant a postponement, there was no indication of when the Claimant would be returning to work the process was causing the Claimant stress (which would continue until there was a resolution to the matter) and that the process was in danger of becoming unduly protracted. Also, as Ms. O'Reilly had not read the Claimants e-mail, sent at 11.35am that same day, she was unaware that the Claimant had stated she would not be attending the hearing and decided to proceed with it (as the Respondents disciplinary procedure allowed).[86]Ms. O'Reilly considered all of the evidence before her especially scrutinising that EHS IRC presentation [B2/251] which was a detailed report into the incident. The author of the report had concluded that the core cause of the incident was that the Claimant had not conducted a risk assessment and if she had followed correct processes, then the incident could well have been prevented. Ms. O'Reilly also carefully considered the various submissions the Claimant had made during the investigative process.[87]Ms. O'Reilly decided that the Claimant was to blame for the accident which could have been avoided and therefore, her actions amounted to misconduct. Ms. O'Reilly had made enquiries, with HR, in respect of the Claimant’s final written warning which had been issued for the Claimants persistent late starts.[88]After deliberating on the matter and considering the sanctions available to her, Ms. O'Reilly concluded that, in the circumstances, the only viable sanction was dismissal for misconduct with notice. On 21st December 2023, Ms. O’Reilly emailed the Claimant a letter which informed her that her employment was terminated effective 15th December 2023 and that she would she would be paid one month's notice in lieu. Ms. O'Reilly informed the Claimant of her right to appeal the termination of employment. Despite the Claimant indicating that she would appeal [B2/449], she ultimately did not pursue that particular avenue notwithstanding that, on 2nd January 2024, Richard Alford (Regional Service Manager) emailed the Claimant asking her to send in her grounds of appeal by 9th January 2024. Salary[89]The Claimant’s contract of employment stipulates, ‘Please be aware that the calculation and payment of sickness allowance is normally adjusted one month in arrears, which may mean that appropriate changes in pay may not take effect in the given period; which may result in the overpayment of monies. Please note that in the event of the overpayment of monies in such circumstances, arrangements will be made to recover relevant sums from an employee at the end of the sickness period.’[90]In December 2023 the Claimant received her pay for that month. As the Claimant’s employment ended on 15th December 2023, the Respondent’s payroll had not been updated in-time to adjust the Claimant’s December pay to reflect the fact that she should not have received a full month’s pay for December 2023. The Claimant, in fact, was paid £2,542.86p instead of being paid £1,290.96p (for the eleven working days in December 2023) therefore, the Claimant was overpaid £1,251.90p. In her December 2023 salary, the Claimant was also overpaid six sick-days because the Respondent processes its sick absence payments one month in arrears. As the Claimant had exhausted her contractual sick pay, in December 2023 she received the correct amount of statutory sick pay (SSP) in the sum of £481.36p.[91]In the Claimant's January 2024 salary she was paid £1,348.04p net. This figure was arrived at because the Claimant was paid: Payment in lieu of notice in the sum of £2,542.86; payment in lieu of accrued, untaken, annual leave in the sum of £821.54p; SSP in the sum of £131.28p. From this amount, there was a deduction of £704.18, for contractual sick pay she had been paid in the previous payroll (which she was not entitled to) and a deduction of £1,251.90p which represented the salary overpayment made to the Claimant in December 2023.[92]On 6th February 2024 the Claimant queried the amount she had been paid in the January 2024 payroll and sent in a fitness-for-work note which the Respondent were previously unaware of. The Respondent’s payroll division confirmed that the Claimant’s sickness absence extended to 8th December 2023 and therefore, the Respondent owed the Claimant £109.40p which was paid to the to the Claimant in the February 2024 payroll, minus £21.88p for a SSP overpayment. Thus, the Claimant had been paid correctly by the Respondent once the adjustments that needed to be made were effected. Relevant Law Time limits for EqA claims[93]S.123 EqA states: (1) Subject to 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.[94]In terms of case law:(i) For the ‘conduct extending over a period’ to be relevant, something that is found to have been the relevant discrimination must be in time for it to render the out of time claims justiciable by virtue of ‘conduct extending over a period’ (South Western Ambulance Service NHS Foundation Trust v. King UEAT/0056/19 at [33]);(ii) with respect to the just and equitable extension arguments, it is for the Claimant to show discretion to extend time should be exercised and that there is no presumption to exercise the discretion – extension is the exception not the rule: Robertson v. Bexley Community Centre4 [2003] EWCA Civ 576, [2003] IRLR 434 at [25] 1. it is always necessary for Tribunals, when exercising their discretion, to identify the cause of the complaint’s failure to bring the claim in time: Accurist Watches Ltd v Wadher5 (EAT/102/09) at [15]; 2. moreover, as the purpose of time bars is to ensure finality and certainty, it is difficult to see how a claimant can discharge such a burden of showing that it is just and equitable to extend time if either (a) he/she does not explain the delay or (b) the explanation is disbelieved: Edomobi v La Retraite RC Girls School UKEAT/0180/16 at [31].6 Unauthorised Deduction from Wages[95]S.13 ERA provides that (so far as material): ‘13 Right not to suffer unauthorised deductions. (1)An employer shall not make a deduction from wages of a worker 4 Indeed prior to this case the EAT already made clear that just because a fair trial is still possible it does not automatically to lead time being extended: Newnham v Transco plc EAT/125/00, EAT/126/00 & EAT/844/00 at [29] 5 Langstaff J, without making any citation or reference to this case, equally reaches the same conclusion in Abertawe Bro Morgannwg University Local Health Board v Morgan UKEAT//0305/13 at [52] also stated that “'The first question in deciding whether to extend time is why it is that the primary time limit has not been met…” 6 Indeed, the Court of Appeal in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640; [2018] ICR 1194 accepted that whilst the test is broad with no specific list of factors to be considered, with lack of a good reason for delay not operating as an absolute bar, two factors that are always relevant: the reason for the delay and any prejudice caused to the other parties (at [18]-[20], and [24]-[26]). employed by him unless— (a)the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b)the worker has previously signified in writing his agreement or consent to the making of the deduction. (2)In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a)in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b)in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.’ Direct Discrimination[96]Section 13 of the Equality Act 2010 (‘EqA’) provides that (so far as material), ‘A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’ …[97]Under section 23(1) EqA, where a comparison is made, there must be no material difference between the circumstances relating to each case. It is possible to compare with an actual or hypothetical comparator.[98]In order to find discrimination has occurred, there must be some evidential basis on which I can infer that the Claimant’s protected characteristic is the cause of the less favourable treatment. I can take into account a number of factors including an examination of circumstantial evidence.[99]I must consider whether the fact that the Claimant had the relevant protected characteristic had a significant (or more than trivial) influence on the mind of the decision maker. The influence can be conscious or unconscious. It need not be the main or sole reason, but must have a significant (i.e. not trivial) influence and so amount to an effective reason for the cause of the treatment.[100]In many direct discrimination cases, it is appropriate for a Tribunal to consider, first, whether the Claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of a protected characteristic. However, in some cases, for example where there is only a hypothetical comparator, these questions cannot be answered without first considering the ‘reason why’ the Claimant was treated as she was.[101]S.136 of the EqA sets out the relevant burden-of-proof that must be applied. A two-stage process is followed. Initially it is for the Claimant to prove, on the balance of probabilities, primary facts from which I could conclude, in the absence of an adequate explanation from the Respondent, that the Respondent committed an act of unlawful discrimination.[102]At the second stage, discrimination is presumed to have occurred, unless the Respondent can show otherwise. The standard of proof is again on the balance of probabilities. In order to discharge that burden of proof, the Respondent must adduce cogent evidence that the treatment was in no sense whatsoever because of the Claimant’s protected characteristic. The Respondent does not have to show that its conduct was reasonable or sensible for this purpose, merely that its explanation for acting the way that it did was non-discriminatory.[103]Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v. Wong [2005] EWCA Civ 142; [2005] IRLR 258 and I have followed those as well as the direction of the Court of Appeal in the well-known case of Madarassy v. Nomura International plc [2007] IRLR 246, CA. The decision of the Court of Appeal in Efobi v Royal Mail Group Ltd [2019] ICR 750 confirms the guidance in these cases applies under the EqA.[104]The Court of Appeal in Madarassy, stated: ‘The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal ‘could conclude’ that on the balance of probabilities, the Respondent had committed an unlawful act of discrimination.’ (56)[105]It may be appropriate on occasion, for the Tribunal to take into account the Respondent’s explanation for the alleged discrimination in determining whether the Claimant has established a prima facie case so as to shift the burden of proof. (Laing v. Manchester City Council and others [2006] IRLR 748; Madarassy.) It may also be appropriate for the Tribunal to go straight to the second stage, where for example the Respondent asserts that it has a nondiscriminatory explanation for the alleged discrimination. A Claimant is not prejudiced by such an approach since it effectively assumes in his or her favour that the burden at the first stage has been discharged (Efobi v Royal Mail Group Ltd [2019] ICR 750, para 13).[106]I am required to adopt a flexible approach to the burden of proof provisions. As noted in the cases of Hewage v GHB [2012] ICR 1054 and Martin v Devonshires Solicitors [2011] ICR 352, they will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. However, they may have little to offer where I am in a position to make positive findings on the evidence one way or the other.[107]Allegations of discrimination should be looked at as a whole and not purely on the basis of a fragmented approach (Qureshi v London Borough of Newham [1991] IRLR 264, EAT. This requires me to ‘see both the wood and the trees’ (Fraser v University Leicester UK EAT/1055/13 at paragraph 79). Discrimination Arising from Disability[108]S.15 EqA provides that:(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[109]Guidance as to whether treatment is because of something arising in consequence of disability is provided in Pnaiser v. NHS England [2016] IRLR 170, by Simler P (as she then was) at §31 and the correct approach to justification was summarised at §10 in MacCulloch v. ICI [2008] ICR 1334.[110]The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it (see: Hardys & Hansons plc v. Lax [2005] IRLR 726 per Pill LJ at paragraphs [19]–[34], Thomas LJ at [54]– [55] and Gage LJ at [60]). The burden of proof is on the Respondent to establish justification (see: Starmer v. British Airways [2005] IRLR 862 at [31]).[111]In the context of S.15(1)(b) EqA, this means that a Tribunal must objectively balance whether the conduct in question is both an appropriate and reasonably necessary means of achieving the legitimate aim. It is for an Employment Tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to make its own assessment of whether the former outweigh the latter.[112]In Birtenshaw v Oldfield [2019] IRLR 946, the EAT held that the Tribunal's consideration of that objective question should give a substantial degree of respect to the judgment of the decision-maker as to what is reasonably necessary to achieve the legitimate aim provided he has acted rationally and responsibly. To this end, the Explanatory Notes to the EqA explain at paragraph 70 that section 15 ‘is aimed at re-establishing an appropriate balance between enabling a disabled person to make out a case of experiencing a detriment which arises because of his or her disability and providing an opportunity for an employer or other person to defend the treatment.’ Harassment[113]Section 26(1) of the EqA provides (so far as material): ‘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.’[114]A similar causation test applies to claims under section 26 EqA as described above to claims under section 13. The unwanted conduct must be shown ‘to be related’ to the relevant protected characteristic. The shifting burden of proof rules set out in section 136 of the EqA can be helpful in considering this question. The burden is on the Claimant to establish, on the balance of probabilities, facts that in the absence of an adequate explanation from the Respondent, show he or she has been subjected to unwanted conduct related to the relevant characteristic. If he or she succeeds, the burden transfers to the Respondent to prove otherwise.[115]Harassment does not have to be deliberate to be unlawful. If A's unwanted conduct (related to the relevant protected characteristic) was deliberate and is shown to have had the purpose of violating B's dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for B, the definition of harassment is made out. There is no need to consider the effect of the unwanted conduct.[116]If the conduct was not deliberate, it may still constitute unlawful harassment. In deciding whether conduct has the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for B, I must consider the factors set out in section 26(4), namely:(a) the perception of B;(b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect. The shifting burden of proof rules can be also be helpful in considering the question as to whether unwanted conduct was deliberate.[117]In Richmond Pharmacology v. Dhaliwal [2009] IRLR 336, the EAT held that it would normally be a 'healthy discipline' for Tribunals to address each factor separately and ensure that factual findings are made on each of them.[118]In so far as the second of those matters is concerned, guidance was given by the EAT in Betsi Cadwaladr University Health Board v. Hughes [2014] 2 WLUK 991; per Langstaff P: ‘10. Next, it was pointed out by Elias LJ in the case of Grant v. HM Land Registry [2011] EWCA Civ 769 that the words “violating dignity”, “intimidating, hostile, degrading, humiliating, offensive” are significant words. As he said: 'Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.’ 11. Exactly the same point was made by Underhill P in Richmond Pharmacology at paragraph 22: ‘..not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.’[119]Consideration should also be given at this stage to the reasonableness of the effect. The test in this regard has both subjective and objective elements. The Tribunal is to look at the effect of the conduct from the claimant's point of view, but must also ask whether it was reasonable of the claimant to consider that conduct had that requisite effect (Dhaliwal). The context of the conduct in question is relevant to all stages of the test. Reasonable Adjustments[120]S.20 of the EqA provides: ‘20. Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. … 21. Failure to comply with duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. (3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.’[121]No duty is imposed on an employer who does not know and could not reasonably be expected to know that that person has a disability and is likely to be at the substantial disadvantage referred to in the first, second or third requirement. The EAT held in Eastern and Coastal Kent PCT v. Grey [2009] IRLR 429, in relation to a provision in similar terms in the DDA 1995, that this meant that an employer was exempt from the duty to make adjustments if each of four matters could be satisfied, namely that the employer:(a) does not know that the disabled person has a disability;(b) does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;(c) could not reasonably be expected to know that the disabled person had a disability; and(d) could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled. Unfair Dismissal[122]This important right is set out in s.94 ERA, and by s.98, the employer has first to show a fair reason for the dismissal, in this case conduct. If that is shown, then the test of fairness under s.98(4) depends in part on the respondent’s size and administrative resources. The Respondent is a large organisation and so a very high standard of fairness is to be expected.[123]The question in unfair dismissal cases is not therefore, whether the employee was guilty of the misconduct, but – broadly speaking – whether it was reasonable of the employer to conclude that he was, and that he should be dismissed as a result.[124]As is well established from the well-known case of British Home Stores Ltd v. Burchell [1978] ICR 303 and others that question can be broken down further as follows:(a) Was there a genuine belief on the part of the decision-maker that the Claimant did what was alleged?(b) Was that belief reached on reasonable grounds?(c) Was it formed after a reasonable investigation?(d) Was the decision to dismiss within the range of reasonable responses open to an employer in the circumstances?[125]This ‘range of reasonable responses’ test (sometimes referred to as the ‘band of reasonable responses’) reflects the fact that whereas one employer might reasonably take one view, another might with equal reason take another. Tribunals are cautioned very strictly against substituting their view of the seriousness of an offence for that of the decision maker: DB Schenker Rail (UK) Ltd v. Doolan [2010] UKEAT/0053/09.[126]That applies not just to the reasonableness of the decision to dismiss but also to the process followed in coming to that conclusion. If a failing is identified in the disciplinary process it is necessary to ask whether the approach taken was outside that range, i.e. whether it complied with the objective standards of the reasonable employer: Sainsbury's Supermarkets Ltd v Hitt [2003] ICR 111, Gherbrehiwt v. Wilson James Ltd [2025] EAT 50[127]However, it is well established that where an employee admits an act of gross misconduct and the facts are not in dispute, it may not be necessary to carry out a full-blown investigation at all: Boys and Girls Welfare Society v Macdonald . The Employment Appeal Tribunal in that case said that it was not always necessary to apply the test in Burchell where there was no real conflict on the facts.[128]Procedural fairness is nevertheless an important aspect and in considering it tribunals are required to take into account the guidance in the ACAS Code of Practice for Disciplinary and Grievance Procedures (2015).[129]A Tribunal should take into account the fact of the warning and a final written warning always implies that further misconduct of whatever nature will be met with dismissal, unless the terms of the contract provide otherwise or the circumstances are exceptional: Wincanton Group Plc v. Stone UKEAT/0011/12. Contemporaneous Documentary Evidence Versus Human Memory[130]Leggatt J (as he then was) made some observations on the reliability of evidence based on recollection in the case of Gestmin SGPS SA v. Credit Suisse (UK) Ltd and another [2013] EWHC 3560 (Comm). He noted that: a) human memory is subjected to powerful biases, and ‘such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth’; b) ‘The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces’; c) ‘Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to reread his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events’; and d) ‘In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.’ (My underlining). Conclusions and Analysis Credibility of Evidence[131]I find that the Claimant’s evidence was honest but at times misconceived (in the non-legal sense) and entrenched. One illustrative example was the Claimant’s persistent refusal to accept that employees of the Respondent had an expected start time or, at least, a latest expected start time. In crossexamination when it was put to the Claimant that she started her route later then the Respondent expected her to start, her stock answer was that there was ‘no contractual start time.’ This position led to the Claimant answering questions in a manner which, at times, was difficult to accept. Ms. Greenley put to the Claimant that by August 2022, at times, she was not starting her route until 10.30am. The Claimant said she disagreed despite there being corroborating documents within the bundle before me that the Claimant, at times, did not start her route until 10.30am. In evidence, and in response to a question from me, the Claimant refused to accept that Mr. Hall was in a senior position to her. The Claimant was also resolute that because Mr. Hall was not her official line-manager he had no authority to query her lateness or timekeeping. Mr. Hall was a Service Co-ordinator and he did have authority, as a member of management, to question members of staff, including the Claimant, when there was an issue with work or timekeeping. This was confirmed by the Claimant's own witness (and father), Mr Gresley, in response to one of my questions.[132]I found that Mrs. Keeble's evidence was of little evidential value and not credible. In her witness statement Mrs. Keeble said that when the Claimant was ‘onboarded’ she declared a medical condition however, in crossexamination Mrs. Keeble said the Claimant had declared a couple of medical conditions but she had ‘grouped’ them together and could not recall what they were. Despite there being a dated, signed, probationary review form in the bundle (which was completed at a probationary review meeting between the Claimant and Mrs. Keeble on 8th February 2022) Mrs. Keeble called it ‘a forge’ (sic) and disputed that she had attended a probationary review meeting with the Claimant and denied that the signature was hers. Allegations of forgery are very serious and Mrs. Keeble was unable to explain any ground upon which she had made such a grave allegation[133]Mr. Gresley and Mr. Wells’ evidence was honest and straightforward but it did not assist me to determine the matters I needed to nor did it support the Claimant’s allegations.[134]Messrs. Hall and Ackerman did not provide witness statements or give live evidence. When I enquired why there was no evidence from these gentlemen I was told on behalf of the Respondent that the reason was that they had left the Respondent’s employ. Counsel, upon instruction, was unable to assist me with my query as to what, if any, efforts the Respondent had made to secure the evidence of Messrs. Hall and Ackerman. Whilst I drew no adverse inferences from the non-attendance of Messrs. Hall and Ackerman I remained aware that the Claimant was unable to cross-examine or challenge their evidence. Therefore, I attached such weight to their evidence as was appropriate in the circumstances and attached greater weight to contemporaneous documents.[135]The Respondent’s witnesses whom did give live evidence were measured and credible. Where there was a dispute, I preferred the Respondent’s evidence as it was largely corroborated by documentary and witness evidence whereas the Claimant’s was not.[136]My determination regarding the burden of proof aspect of the allegations is dealt with at the end of my conclusions. Direct Disability, Age, or Sex Discrimination & Harassment Related to Disability, Age, or Sex[137]List of Issues (‘LoI’) 3.1.1. to 3.1.1.3/4.1.1 to 4.1.1.37 3.1.1 On the 16 January 2023 did Mr Hall inform Ms Gresley that he had a problem with her timekeeping. In particular did he say:3.1.1.1 that he was setting her a start time and that she needed to stick to that time frame?3.1.1.2 that she may have her medical conditions but he still needed her in at 8am as it should not be effecting her work and that if she could not stick to the time frame he will look at other options for her to do? 7 The Claimant’s allegations of direct discrimination and harassment are pleaded in the alternative.3.1.1.3 "you can either work with me and it can make things a lot easier for you or you can work against me and it can make things a lot harder for you"? At the time of Mr. Hall's first interaction with the Claimant, in early January 2023, the Claimant had already had her poor timekeeping issues broached by the Respondent. Although Mr. Hall was a newcomer to the Claimant’s team he was aware from colleagues that the Claimant had trouble sleeping and had seen a doctor in respect of her sleeping problems. Mr. Hall was also aware that the Claimant had problems with meeting expected start times and that she had agreed with Mr. Akerman to start work between 8.00am and 9.00am.[138]Mr. Hall told the Claimant that he had a problem with her timekeeping, as he had noticed, for the most part, the Claimant did not start her shift until nearer 10.00am, because she did have a problem with timekeeping. Mr. Hall did not tell the Claimant that he was setting her a start time which she needed to adhere to, he merely reminded her that she had agreed with Mr. Ackerman that she would start her shift between 8.00am and 9.00am.[139]Apart from issues with sleeping Mr. Hall was unaware of any of the Claimant’s other conditions. Therefore, he did not tell her that whilst she may have medical conditions she still needed to begin her shift at 8.00am nor did he tell her that if she did not begin her shift by 8.00am he would look at other work options for her. Similarly Mr. Hall did not say to the Claimant that she could either work with him and it could make things easier or she could work against him and it would make things harder. The tone and content of Mr. Hall’s email sent on 30th January 2023 does not support the Claimant’s allegations. I placed importance on Mr. Hall’s email as it was contemporaneous and when writing it, Mr. Hall could not have been aware that that litigation would ensue. Thus, the Claimant’s evidence that Mr. Hall wrote the email to ‘cover himself’ in case of a legal claim, is not credible.[140]Even if Mr. Hall had said the things the Claimant alleges it would not have been because any of her protected characteristics but because, as a supervisor, Mr. Hall had to ensure that the Claimant’s route was completed and all collections made. When the Claimant started her shift after the expected start time it meant that Mr. Hall may have had to move drivers around to ensure the Claimant's entire route was covered and service delivery maintained.[141]On the balance of probabilities there are no facts from which I can infer that the Claimant was treated less favourably because of her protected characteristics and she has not raised a prima facie case of a difference in treatment because of those characteristics or at all.[142]When considering the allegations of harassment, I reminded myself that the burden is on the Claimant to establish, on the balance of probabilities, facts that in the absence of an adequate explanation from the Respondent, show she has been subjected to unwanted conduct related to the relevant characteristic which has the purpose or effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. I was mindful of the need to take account of the Claimant’s perception, the other circumstances of the case, and whether it was reasonable for the conduct to have that effect. I further reminded myself of the sage words of Elias J in Grant and not to cheapen the significance of the s.27 EqA words. (the matters contained within this paragraph will hereafter be referred to as ‘the test for harassment’).[143]Even if Mr. Hall had said the impugned words they were not related to the Claimant’s protected characteristics or capable of surmounting the test for harassment.[144]LoI 3.1.2 3.1.2 In or around the week leading up to the 30 January 2023, did Mr Hall have a conversation with Mr Emery, Mr Gresley (Ms Gresley’s father), Richard [surname not known] and Mr Roger during which he stated that that he did not care about Ms Gresley’s disabilities or medical conditions, that her conditions should not be affecting her work and if other people can do it why can’t Ms Gresley.[145]This allegation is not made out. There is simply no evidence that in the week preceding 30th January 2023 Mr. Hall had conversations with various individuals, including the Claimant's father, Mr. Gresley, in which he said he did not care about her disabilities or medical conditions. In his oral evidence Mr. Gresley did not corroborate the Claimant’s allegations that Mr. Hall said the words alleged. As Mr. Gresley is the Claimant's father, if Mr. Hall had uttered these words he no doubt would have said so.[146]There are no facts from which I can infer that the Claimant was treated less favourably because of her protected characteristics and she has not raised a prima facie case of a difference in treatment because of those characteristics or at all.[147]Similarly, the harassment test is not met in respect of this allegation.[148]LoI 3.1.3 to 3.1.3.2 3.1.3 On 30 January 2023 did Mr Hall:3.1.3.1 threaten to remove her from active duties and make her a spare driver if she did not do as he asked?3.1.3.2 grin and snigger in Ms Gresley’s face when she refused to sign the file note that he issued on that date?[149]On the same day Mr. Hall met with the Claimant (30th January 2023) and 14 days after his meeting with the Claimant on 16th January 2023, Mr. Hall sent an email to Emma Keeble Mr. Ackerman and Mr. Marsh detailing his interactions with the Claimant on those two days.[150]The contents of Mr. Hall's email was professional ,measured, and cogent. There is no inkling of any ill-will or hostility toward the Claimant . In fact, Mr. Hall began by taking an informal approach which then escalated to the issuance of a file-note, on 30th January 2023, because the Claimant had not improved her start times. In that same e-mail Mr. Hall states that it was his first interaction with the Respondent’s HR team and he asks for guidance. The contemporaneous document does not accord with the allegations made by the Claimant that Mr. Hall threatened to remove her from duties or make her a spare driver. The Claimant had refused to sign the file-note but the allegation that Mr. Hall grinned and sniggered in her face, is inconsistent with the documentary evidence.[151]There are no facts from which I can infer that the Claimant was treated less favourably because of her protected characteristics and the harassment test is not met in respect of this allegation.[152]LoI 3.1.4 to 3.1.4.2 3.1.4 Did Mr Akerman lie to Ms Gresley? Ms Gresley relies on the following instances: 3.1.4.1 On 9 January 2023 and on 22 February 2023 Mr Akerman had informed Ms Gresley that he had no concerns about her performance, however Mr Hall informed her on the 16 January 2023 that was not what Mr Akerman had told him.[153]This allegation cannot be factually correct and is not made out. Mr. Akerman had, prior to 16 January 2023, had concerns about the Claimant’s start time and therefore, he had adjusted that start time by agreeing the Claimant could begin her route between 8.00am and 9.00am. Mr. Ackerman stated this in his e-mail, on 1st February 2023, to Mr. Hall. Similarly in his email of 30th January 2023, Mr. Hall outlined that he was aware that Mr. Ackerman had told the Claimant she needed to start her route between 8.00am and 9.00am so the Claimant’s allegation is uncorroborated by the documentary evidence.[154]There are no facts from which I can infer that the Claimant was treated less favourably because of her protected characteristics and the harassment test is not met in respect of this allegation.[155]LoI 3.1.4.2 3.1.4.2 On 22 February 2023 Mr Akerman agreed that Ms Gresley could start work between 10am and 1pm, however Mr Rogers questioned her about timekeeping on 7 March 2023 suggesting that Mr Akerman had not informed him of this agreement.[156]This allegation is a flight of fancy. The majority of businesses on the Claimant’s route had their business hours between 9.00am and 5.00pm. If Mr. Ackerman had agreed that the Claimant could start work between 10.00am and 1.00pm that would have put in jeopardy the Claimant’s ability to successfully make all the collections on her route which in turn, would have placed the Respondent in breach of its service level agreements with customers. Because Mr. Ackerman had not agreed that the Claimant could start work between 10.00am and 1.00pm Mr. Rogers would have rightly told the Claimant, on 7th March 2023, that Mr. Ackerman had not informed him of the agreement, because there was no such agreement.[157]Given the fact that this allegation did not happen the Claimant could not have been treated less favourably because of her protected characteristics or harassed as alleged and the allegation fails.[158]LoI 3.1.5 to 3.1.5.4 3.1.5 Did Mr Akerman deny knowing about Ms Gresley’s disability: …[159]Mrs. Keeble’s Evidence was that when she onboarded the Claimant the Claimant informed her of a disability although Mrs. Keeble could not recollect what that disability was. I have seen no evidence that the Claimant provided the Respondent with documentary evidence of her impairments. Mr. Ackerman was aware that the Claimant had issues with sleeping but had not been informed of any of the Claimant’s other impairments.[160]If I am wrong about this and Mr. Ackerman knew of the Claimant’s impairments but then denied knowledge, at most, that would make him a fibber. It would not mean that Mr. Ackerman treated the Claimant less favourably because of her protected characteristics or that denial of the Claimant’s impairments was conduct capable of satisfying the harassment test.[161]LoI 3.1.6 to 3.1.6.3 3.1.6 In relation to the accident that occurred on 17 February 2023:3.1.6.1 At least 2 weeks prior to the accident, did Mr Akerman not listen to Ms Gresley’s warnings about the brake’s lights that she had recorded on the defect sheet at least two weeks prior to the accident?3.1.6.2 On or around the week of the 13 February 2023, did Ms Gresley inform Mr Ackerman that the brakes did not feel right, and did he tell her that she was to carry on driving as long as the warning lights were not red?3.1.6.3 Did Mr Ackerman lose Ms Gresley’s original statement about the accident in which she had referred to the problems with the brakes, stated that she had recorded it on defect sheet and informed Mr Ackerman?[162]The Claimant was involved in her accident on 17th February 2023. On 15th, 16th, and 17th February 2023, when carrying out her walk-around checklist, the Claimant wrote ‘brake wear message on dash’ on the checklist. There is no evidence to suggest the two-weeks before the accident the Claimant had informed Mr. Ackerman about a brake warning light and that he had ignored her. Nor is there any evidence that on or around 13th February 2023 the Claimant informed Mr. Ackerman that the brakes ‘did not feel right’ and that he told her to carry-on driving as long as there was no red brake warning light.[163]Similarly, I have seen no evidence to suggest that Mr. Ackerman, either mistakenly or deliberately, lost the Claimant’s statement following the accident. If Mr. Ackerman had lost the Claimant’s statement, either in error or on purpose, there is no linkage to any of the Claimant’s protected characteristics or that this was less favourable treatment because of the Claimant’s protected characteristics..[164]If Mr Ackerman had lost the Claimant’s statement he would have been remiss in his duty as a manager but that in itself cannot be conduct which satisfies the harassment test.[165]LoI 3.1.7 3.1.7 On 15 December 2023, dismissing her.[166]The Claimant's dismissal is substantively dealt with below in my conclusions on the Claimant’s ordinary unfair dismissal allegation. By merely stating that dismissal was less favourable treatment because of a protected characteristic, without anything more, does not get the Claimant very far.[167]It was Ms. O'Reilly who dismissed the Claimant after finding that she had committed misconduct whilst on a final written warning. From the evidence, there is nothing to suggest that Ms. O'Reilly’s decision was vitiated by discrimination or that it was less favourable treatment because of any of the Claimant’s protected characteristics.[168]This allegation does not satisfy the requirements of the harassment test and fails. Discrimination Arising from Disability[169]LoI 5.3 5.3 Did the following things arise in consequence of Ms Gresley’s disability:5.3.1 difficulty in sleeping and hence; and / or5.3.2 difficulty explaining herself at times.[170]Due to my findings at paragraphs 19 to 23 (supra) the Claimant’s difficulty in sleeping could not have arose in consequence of a disability.[171]There was no evidence before me that the Claimant has a sleeping impairment or sleeping condition which would qualify as a disability under s.6 EqA. Mrs. Keeble who was the Claimant's witness stated in her witness statement that she observed minimal impact on the Claimant's ability to perform her job responsibilities effectively. It was the Claimant's own evidence that she awoke in time to take charge of a child for whom her father had parental responsibility and would remain with that child until around 8.45am; when he was collected for school.[172]Equally there was no evidence that the Claimant had difficulty explaining herself at times. All of the documentary evidence in the bundle, during the material times, which was proffered by the Claimant is written cogently, clearly, and expressed well. The Claimant’s witness statement, which she said she wrote, is also equally clear and well set-out.[173]Therefore, this allegation is not made out and fails. If I am wrong about this the Claimant has failed to establish that the allegations she has pleaded under this head of claim were because the Claimant had difficulty sleeping or explaining herself at times. The Respondent has established the proportionate means of achieving legitimate aims which were to ensure service delivery and business continuity; and to uphold high standards of road safety to protect the health and safety of both the Respondent’s drivers and other road users.[174]The Respondent’s treatment of the Claimant was not connected to difficulty in sleeping ordifficulty in the Claimant explaining herself and therefore, this allegation is dismissed. Failure to make Reasonable Adjustments[175]LoI6.2.1 6.2.1 starting collections early in the morning (‘1st PCP’);6.2.2 changing the routes which drivers were assigned (‘2nd PCP’); and / or6.2.3 insisting on visiting customer premises even if they were closed or had cancelled the contract (‘3rd PCP’).[176]During cross-examination the claimant continually maintained that drivers did not have a start time. She again and again referred to the contract of employment and pointed out that it did not state a start time for drivers. Therefore, it is somewhat of a paradox that the Claimant alleges that the Respondent had a PCP of starting collections early in the morning.[177]The Respondent had expected start times. The start time for drivers was dependent upon which route they drove. Some drivers started as early as 4.00am however, the Claimant did not and nor was she ever expected to start before 7.00am. The Claimant’s 7.00am start time, agreed with Mrs Keeble, was adjusted time and time again. Ultimately, the Claimant was told she had to begin work by 9.30am and should have a ‘key turn’ by 10.00am. This is an increased start time of three hours. The 1st PCP did not put the Claimant at any substantial disadvantage as it was not applied to her.[178]The Respondent did not have a PCP as alleged which was to change the routes a driver was assigned; the 2nd PCP.[179]Drivers were assigned routes either because the Respondent suited them to a route or because a driver may have had a preference for a particular route. If I am wrong about this, the Respondent was assigned to route 300 because she wanted to drive that route and was assigned to that route, by the Respondent, as a reasonable adjustment. There was no disadvantage to the Claimant in being assigned to the route of her choosing and in allowing the Claimant to remain on route 300, the Respondent had made a reasonable adjustment.[180]The alleged 3rd PCP is illogical and did not exist. The Respondent is a commercial business. It relies on income from collecting waste from businesses and disposing of it. Therefore, as a mater of rationality, sending a driver to premises which were closed or to a business which had cancelled its contract with the Respondent could only result in financial and temporal losses to the Respondent which is contrary to its definitive aim of making a profit. The Respondent did not have the 3rd PCP and the allegation of failure to make reasonable adjustments fails. ‘Ordinary’ Unfair Dismissal.[181]In August 2023, the Claimant was in the operative period of a final written warning which had been issued due to the Claimant’s timekeeping issues. On 29th August 2023 the Claimant was involved in a second road traffic accident (the first having occurred in February 2023) which, after investigation, was deemed to have been the Claimant’s fault. The Claimant was disciplined and subsequently dismissed for misconduct.[182]Therefore, as per Burchell, what I have to consider is,:(a) Was there a genuine belief on the part of the decision-maker that the Claimant did what was alleged?(b) Was that belief reached on reasonable grounds?(c) Was it formed after a reasonable investigation?(d) Was the decision to dismiss within the range of reasonable responses open to an employer in the circumstances?[183]It was clear from the evidence before me that the Respondent had a genuine belief that the Claimant had committed misconduct. The accident on 29th August 2023 was the Claimant’s second blameworthy accident in just over six months. It was reasonable for the Respondent to hold that belief in light of the Claimant’s acknowledgment that she had been involved in the accident and due to the findings of the independent Sopp and Sopp report which had concluded that the Claimant was to blame for the accident.[184]Mr. Akerman had carried out a reasonable investigation in which he had questioned the Claimant and considered her version of events. Mr. Akerman also had available to him the independent Sopp and Sopp report and EHS IRC presentation which both concluded that the Claimant was at fault. Whilst it may have been prudent to appoint an alternative investigator (as the Claimant had mentioned Mr. Ackerman in her grievance) Mr. Akerman was not a decisionmaker but an investigator so the Respondent had carried out a reasonable investigation in all of the circumstances.[185]Ms. O’Reilly had originally wanted to hold a disciplinary hearing on 7th December 2023 but postponed it, to 12th December 2023, upon the Claimant’s request. In the invitation letter, for the postponed disciplinary hearing, Ms. O’ Reilly advised the Claimant of her right to be represented and wrote: ‘Please be aware that you are obliged to make yourself available to attend meetings as necessary, and should therefore take all reasonable steps to attend. If you do not attend the meeting, it may be held and a verdict reached in your absence.’ The letter was emailed to the Claimant’s private email address.[186]Despite being aware that the disciplinary hearing was being rescheduled, the Claimant did not monitor her emails and 15 minutes prior to the disciplinary hearing commencing, emailed Ms. O’Reilly asking for a second postponement. Ms. O’Reilly had not seen the email and proceeded with the disciplinary hearing and it was reasonable for her to do so.[187]Ms. O’Reilly carefully considered the evidence before her, including submissions made by the Claimant during the investigative process, and decided that dismissal with notice was the appropriate sanction to impose. Ms. O’Reilly was aware that the Claimant was in the midst of a final written warning and was entitled to take it into account. I have been careful not to fall into a substitution mindset and in all the circumstances, Ms. O’Reilly’s decision was well within the range of reasonable responses.[188]The Claimant did not exercise her right to appeal and her claim of unfair dismissal fails. Unauthorised Deductions of Wages[189]There was no evidence from which I could conclude that the Respondent had made unauthorised deductions from the Claimant’s Wages.[190]However, there was contemporaneous documentary evidence that the Claimant had been properly paid all outstanding monies upon the termination of employment.[191]The Claimant had failed to grasp why deductions were made from her final payslips and Ms. Rigby’s evidence clarified any misunderstanding. The deductions made from the Claimant’s final payslips were for overpayments of salary and for payment of contractual sick pay when SSP should have been paid. This, this allegation is not made out and fails. Burden of Proof[192]S.136 EqA provides that, once a Claimant proves facts from which the Tribunal could decide ‘in the absence of any other explanation’ that unlawful discrimination has occurred, the burden of proof shifts to the employer to prove a non-discriminatory explanation.[193]In considering the burden of proof I reminded myself of Madarassy and associated case law. In the instant case, the Claimant has failed to establish facts from which I could decide that unlawful discrimination has taken place and the burden did not shift to the Respondent in respect of the allegations she made. However, if I am wrong, the Respondent provided robust nondiscriminatory reasons (see my findings of fact and conclusions) for any difference in treatment.[194]For these reasons it is my decision that the claim is not made out and is dismissed in its entirety.[1]The Respondent applied, under Rule 69 of the Employment Tribunal Procedure Rules 2024, for reconsideration of the Tribunal’s decision.[2]The Claimant, on 8th April 2026, has applied for a reconsideration of the Judgment as she says: 1 of 6 ‘The Claimant applies for reconsideration of the Tribunal’s judgment on the basis that the Tribunal made material errors of fact, failed to properly apply Section 15 of the Equality Act 2010, and reached conclusions inconsistent with the evidence before it. These errors relate to the Tribunal’s assessment of causation between disability and conduct, its reliance on unsupported inferences regarding functioning, and its failure to properly engage with contemporaneous and medical evidence. These errors were material and directly affected the outcome.’[3]The Claimant’s reconsideration application was five pages in length and appears to be generated by artificial intelligence (‘AI’) software. That in itself is not an issue but the Tribunal has remained alert to the pitfalls and errors that can occur when a party uses AI to create legal documents.[4]The Claimant’s reconsideration application identifies three substantive areas upon which reconsideration is sought. These ‘areas’ are then broken into discrete numbered grounds as follows. ‘the Tribunal made material errors of fact’[5]A significant aspect of the Claimant’s grounds were focussed on a dispute as to the facts the Tribunal found after considering the evidence and submissions. The First Instance Tribunal is best placed to make findings of fact as they are reached after assessing the credibility of witnesses and having scrutinised the oral and documentary evidence. 2 of 6[6]The Claimant makes many generalised points which all appear to be stating ‘the judgment was contrary to the evidence’, or ‘there was no evidence to support the judgment.’ It is not uncommon for a party to disagree with a finding of fact but that is not a legitimate ground for seeking reconsideration. If perversity is alleged the Claimant’s proper route is by way of an appeal to the Employment Appeal Tribunal (‘EAT’) but the Claimant may wish to consider the Judgment of Mummery J (as he then was) in Stewart v. Cleveland Guest (Engineering) Ltd [1996] ICR 535. ‘failed to properly apply Section 15 of the Equality Act 2010’[7]In her application the Claimant states: ‘The Tribunal focused on whether the Claimant could function in some circumstances, rather than whether the conduct arose in consequence of disability. The correct analysis required consideration of the causal chain: Disability (ADHD, autism) → Executive dysfunction and sleep disruption → Difficulty initiating tasks and maintaining routine → Lateness → Disciplinary action This chain was not properly analysed. The Tribunal’s approach is inconsistent with established authority including City of York Council v Grosset, Pnaiser v NHS England, and J v DLA Piper UK LLP. Disability does not need to be the sole cause, only a material influence. The Tribunal failed to consider whether the Claimant’s disability remained a material cause of her lateness, even if other factors were present. This error was material because it led to rejection of the Section 15 claim.’[8]The Claimant has ignored the findings of the Tribunal and simply asserted what she thinks the tribunal considered. The applicable law was citied in the judgment and it was explained that when it was applied to the facts found, why the Claimant’s s.15 EqA complaint was not made out.[9]The Claimant has a different interpretation of the operation and application of s.15 EqA and if she believes there was an error of law, this is not a matter for reconsideration but for the EAT to determine. 3 of 6 ‘reached conclusions inconsistent with the evidence before it’[10]The Claimant appears to have viewed the evidence with a certain lens and due to that, believes that the Tribunal reached conclusions which were inconsistent with the evidence.[11]In its Reserved Judgment the Tribunal explained that having applied the law to the facts, certain conclusions were reached and explained why.
Relevant Law
[12]There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v. Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: ‘the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v. Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v. Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.’[13]Similarly, in Liddington v. 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by Simler P (as she then was) said in paragraph 34 that: ‘a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a 4 of 6 means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.’[14]In common with all powers under the 2024 Rules, reconsideration under rule 70 must be conducted in accordance with the Overriding Objective which appears in rule 3, namely, to deal with cases fairly and justly. Achieving finality in litigation is part of a fair and just adjudication.[15]Reconsideration is not a means by which to have a second bite at the cherry, or is it intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.[16]Tribunals have a wide discretion whether or not to order reconsideration. Where a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.[17]The Claimant, in her application, seeks to re-litigate matters and adduce evidence which was not before the Tribunal; evidence which the Respondent was not able to test and that the Tribunal was unable to assess. As per Liddington, reconsideration is not a process by which the Claimant can have a ‘second bite at the cherry.’[18]For all of the above reasons, the Claimant’s application is refused.