Mrs S McLeary v One Housing Group Ltd: 2302772/2016

EMPLOYMENT TRIBUNALS

Case No 2302772/2016

Between

Mrs S McLearyClaimant

One Housing Group LtdRespondent

Before

Employment Judge Baron

In person for claimant

Laura Fairchild - Solicitor for respondent

Date 17 March 2020

JUDGMENT

It is the judgment of the Tribunal that the claims made by the Claimant under the provisions of the Equality Act 2010 are dismissed.

REASONS

[1]The Claimant presented a claim to the Tribunal on 1 December 2016. She stated that she had been employed by the Respondent from 1 April 2009 until she resigned with effect from 30 June 2016. In the claim form the Claimant indicated that she was making claims that she had been unfairly dismissed, and also of breaches of the Equality Act 2010 relying on the protected characteristic of disability. The disability in question is dyslexia. A response was duly filed. The fact of the Claimant being a disabled person was accepted, but the claims were denied.

[2]There was a preliminary hearing for case management purposes on 31 January 2017. The Claimant was represented by counsel at that hearing, Miss Lewis. The Claimant was ordered to provide further details of some elements of her claims. Those details were supplied by Miss Lewis on 9 March 2017. Each of the allegations was subsequently numbered by Miss Fairchild for the purposes of identification.

[3]On 9 March 2017 the Respondent’s solicitors applied for this preliminary hearing to be held to decide whether the Tribunal had the jurisdiction to consider the claims of disability discrimination taking into account the statutory time limit. The time limit is three months from the date of the incident in question of which complaint is made. If there is conduct extending over a period, then time starts from the end of that period. The three month period is extended by reason of the early conciliation procedure where appropriate. The Tribunal has the jurisdiction to extend the time limit where it is just and equitable so to do. The Claimant had contacted ACAS under the early conciliation procedure on 20 September 2016, and the certificate was issued on 3 November 2016. The date when time started to run was 21 June 2016.

[4]The Respondent’s solicitors gave notice to the Claimant and the Tribunal on 4 August 2017 that they intended also to make an application under rule 37 of the Employment Tribunals Rules of Procedure 2013 for the claims to be struck out as having no reasonable prospect of success, or for an order under rule 39 that the Claimant be required to pay a deposit as a condition of being allowed to continue with her claims or some of them.

[5]On 14 August 2017 after this hearing had been concluded the Claimant sent to the Tribunal an email with comments on some of the documents provided by the Respondent at the hearing, and delivered to the Tribunal a pack of 64 pages of documents. I mention these further below.

[6]I will deal with each of the allegations in turn. The general submission by Miss Fairchild was that the allegations were well out of time. I will not repeat that point on each occasion. I start with allegations numbered 1 to 4 inclusive, and also allegation number 7. The first three allegations are ones said to be under section 15 of the 2010 Act of having been treated unfavourably because of something arising from the disability. The Claimant said that as a result of her symptoms the Respondent saw her as a problem/difficult member of staff, resulting in unfavourable treatment. Allegations numbered 4 and 7 are allegations of harassment under section 26 of the 2010 Act.

[7]Miss Fairchild submitted that each of these allegations related to the Claimant’s weekly contract hours, and the imposition of a rota. She pointed out that the Claimant had herself stated in her further particulars as follows: On the 8th June 2015, it was finally agreed that claimant could work her weekly contract hours stated on her Employment Terms & Condition Contract, which she continued to do up to her last working day 29th September 2015.

[8]Allegation 5 is an allegation of harassment, as indeed are all the allegations up to and including number 18. Allegation 5 contains two separate allegations. The first is that in May 2015 the Claimant was told that her appraisals and those of other members of her team had been lost or deleted, and the Claimant referred to the data protection legislation. The second element is that a further appraisal completed on an unspecified date in 2015 was deleted in August 2016. The Claimant had by then of course left the Respondent. Miss Fairchild submitted in respect of the first element that it was a single act and was well out of time. In respect of the second post-termination element I was referred to an email of 8 August 2017 from Warwick Clarke, HR Business Partner, in which it was said, in effect, that when an employee left the Respondent any appraisals were archived.

[9]Allegation 6 relates to a telephone call to the Claimant on 12 June 2015. The Claimant says that the behaviour of Ms Boland was ‘excessive’.

[10]Allegation 8 is apparently an allegation that from 19 June 2015 onwards the Claimant was carrying out electronic monitoring of the Claimant, and she referred to lights flashing on her computer monitor. The Claimant accepted during this hearing that she may have been paranoid about the matter. Miss Fairchild accepted that this allegation could be considered as an act extending over a period, but pointed out that the Claimant had not worked after 29 September 2015, so that this allegation had to be some nine months out of time.

[11]Allegation 9 again raises the issue of data protection, and also raises other possible claims. The Claimant says that during the period from 20 to 26 July 2015 she was advised that timesheets from before 12 May 2015 had been deleted. That, said Miss Fairchild, was a one-off act which was well out of time. The Claimant also referred to ‘increase in workload, deadlines to clear backlog with minimum support/adjustments to meet disability needs’. Miss Fairchild referred me to a supervision record of 8 May 2015 where the increase in workload was discussed, and it was agreed that there would be a review in two months thereafter. It was intended that at that time the Claimant would ‘begin carrying out sign ups.’ I was also referred to further supervision records of 7 and 20 August 2015. There was a further discussion about workload during the third supervision, and the Claimant referred to dyslexia. Miss Fairchild again pointed out that the Claimant had not worked after 29 September 2015.

[12]Allegation 10 is linked to the previous allegation. It is that by an email dated 21 July 2015 her line manager, Ms Boland, asked her to complete a sign up as there had by then been sufficient time for the Claimant to catch up with her work load.

[13]Allegation 11 refers to the period from late July 2015 to early August 2015. It appears to be an allegation that the Claimant’s work mobile telephone had been reconfigured so as to prevent her obtaining access to her emails on that equipment. The Claimant says that she referred this to Ms Boland on 2 September 2015, and did not obtain any reply.

[14]Allegation 12 is dated April 2016 and relates to the outcome of a grievance the Claimant had made which is linked to the previous allegation. The Claimant appears to be saying that Mr Pryce-Kennedy, who investigated her grievance, received an inadequate ICT report concerning her allegations on the subject, and so there was an incorrect finding by him.

[15]Allegation 13 is both a specific and a general allegation concerning Ms Boland. The specific allegation refers to a workshop on 18 August 2015, although exactly what is alleged is not stated. The general allegation relates to her evidence during the grievance process. The grievance appeal was heard on 27 May 2016 and any evidence must have been given before that date.

[16]Allegations 14 and 19 both refer to the Respondent’s sickness absence procedures. The period in question for the former is stated to be 22 August 2015 to 18 September 2915, and for the latter 11 to 14 August 2015. The factual complaint is that the Claimant received an Informal Warning. It is common ground that that was reduced to a Caution on 27 April 2016. Allegation 14 also refers to the commencement of a disciplinary investigation. That process lasted from 22 August to 18 September 2015.

[17]Allegation 19 is said to be an act of victimisation. The alleged protected act is that the Claimant raised concerns in May and June 2015 concerning proposed changes to her contract hours. The Claimant did not state in her particulars on what basis she says that those concerns were raised in the public interest.

[18]Allegation 15 is a complaint by the Claimant that on 27 September 2017 the Claimant worked on her own for a period in excess of three hours before the Deputy Team Manager arrived to join her.

[19]Allegation 16 is a complaint that Ms Boland had complained on 26 and 27 October 2015 that the Claimant had not provided an up to date medical certificate.

[20]Allegation 17 is a very generalised complaint that Ms Boland looked for situations or issues to add to the disciplinary process or discredit the Claimant’s name, and had provided false information to external agencies. Further reference was made to the evidence provided by Ms Boland in connection with the Claimant’s grievance.

[21]Allegation 18 referred to the period from 29 October 2015 to February 2016 when the Claimant was on sick leave. The allegation is that email communications from HR were unsympathetic and hostile.

[22]Allegation 20 is another allegation of victimisation. The allegation is stated to refer to the period from 21 August to 18 September 2015. It is unclear as to the treatment of which the Claimant is complaining, but it appears to refer to the disciplinary process, and specifically that a disciplinary hearing took place in December 2015 at a time when the Claimant was absent on sick leave.

[23]Allegation 21 is of a failure to make reasonable adjustments. The period in question is October 2012 to 30 June 2016. Various factual allegations are made. The first is that the Respondent became aware of the Claimant’s disability in October 2011 and should have carried out a risk assessment. I note in passing that that is not in itself an allegation of a failure to make a reasonable adjustment, as such assessment can only be a preliminary step in the ascertaining of whether any adjustments are required. The second allegation is similar in that an assessment ought to have been carried out when the Claimant returned to work in October 2012. The third allegation is that once an assessment had been carried out in March 2015 there was a delay to November 2015 in complying with the recommendations made as a result of the assessment. Under this heading the Claimant repeated matters raised under allegations 5 and 13 above.

[24]Miss Fairchild submitted that all of the claims made under the Equality Act 2010 were out of time, and there was no justification for extending them on the basis that it was just and equitable so to do. She reminded me that extending time is not the norm, and submitted that in the absence of any reason being given by the Claimant for an extension then one could not be granted.1 Miss Fairchild submitted that as at least some of the allegations were of considerable antiquity the quality of the evidence would inevitably have been adversely affected. There was specific prejudice to the Respondent, she said, because three key witnesses had left the employment of the Respondent. They were Emma Roberts, Claudia Sylvia and Jason Pryce-Kennedy. Each of them was mentioned in the further particulars of the claim.

[25]Miss Fairchild also referred to the contact that the Claimant had had with ACAS to which I refer below, and criticised the Claimant for delaying until 20 September 2016 before initiating the early conciliation procedure.

[26]Mrs McLeary replied. She stressed that although the complaints may look minor on paper, consideration ought to be given to the impact of the matters on her. She stressed the extra efforts she had made in her work. Mrs McLeary also elaborated to some extent on the allegations being made. In particular she said that she had only learned on 28 August 2016 about what she called the ‘deletion’ of her 2015 appraisal.

[27]After some further comments by Mrs McLeary about her various complaints I intervened and explained that I was at that stage concerned about the time issue. Mrs McLeary agreed that all the claims were made out of time. She said that her union did not assist her until her grievance appeal which took place on 27 May 2016. The Claimant said that she had not been well enough until 2 February 2016 to present a grievance and that it had taken her longer than she had wished to write it. It is indeed a detailed letter. Mrs McLeary said that she had hoped that the grievance would resolve the situation.

[28]The Claimant’s evidence about making contact with ACAS and the advice given to her by her union was not entirely clear. At some stage before her employment ended on 30 June 2016 the Claimant had been in contact with ACAS under the early conciliation procedure, but had cancelled that procedure on the advice of her union representative who wanted to talk to the union’s solicitors. ACAS had supplied a cancellation slip, she said, but that had not been disclosed.

[29]The Claimant knew of the three month time limit from at least the date when her employment ended. She blamed her union representative for not giving her sufficient assistance. She said that she was a hard worker and that the treatment of her by the Respondent had not been fair.

[30]Miss Fairchild replied. She pointed out that although the Claimant had not attended work after 29 September 2015 she had been perfectly capable of corresponding by email and of writing her detailed grievance of 2 February 2016. I was also shown emails of 21 May 2016 from the Claimant to witnesses in the grievance to demonstrate that the Claimant was capable of pursuing her issues at that time. 1 Robertson v. Bexley Community Centre

[2003] IRLR 434

CA and Edomobi v. La Retraite RC Girls School

UKEAT/0180/16

[31]I now turn to the law, a consideration of the matter and my conclusions. It is acknowledged that the claims under the 2010 Act are out of time. The Tribunal may extend time where it is just and equitable so to do. I agree with the submissions made by Miss Fairchild above that a claimant must show that it is fair in all the circumstances for time to be extended. I also accept the proposition that in the absence of a claimant showing a credible reason for the delay which had occurred then time cannot be extended. There is simply nothing to work on.

[32]In this case the Claimant put forward three reasons for the delay. The first was that she was not well. The second was that she had been let down by her union. The third was that she hoped that the matter would be resolved through the grievance process. The difficulty I have with the first two is an absence of detail. The difficulty with the third is that the letter providing the outcome of the grievance appeal was dated 28 June 2016, but the Claimant did not contact ACAS under the early conciliation procedure until 20 September 2016.

[33]Tribunals often bring into play in these circumstances the guidance contained in British Coal Corporation v. Keeble

[1997] IRLR 336

EAT. The factors mentioned in that case are not binding on the Tribunal, and arise in a different jurisdiction. Nevertheless they can be useful. The principal factor is the reasons for the delay and the extent of that delay, combined with the promptness with which the claimant in question took action after being aware of the relevant facts. I have mentioned the reasons for the delay, and I do not consider that they carry much weight. Further the various delays were significant. The earliest factual allegations date back to March 2015, and there are many other allegations from 2015. There is in particular the delay of almost three months after the grievance appeal outcome letter had been sent. That occurred after the Claimant’s employment had been terminated.

[34]I accept that inevitably the cogency of the evidence will have deteriorated by the delay, but it is impossible to assess with any accuracy the extent of that effect. Another major factor, and perhaps the overriding one, is the prejudice to the parties. There will of course be prejudice to the Claimant if the claim is not allowed to proceed, and also prejudice to the Respondent if it is allowed to proceed. That is inevitable in all such situations. However in this case there is particular prejudice to the Respondent in that three important witnesses have left its employment. There can be no certainty that they will be available and willing to give evidence for the Respondent.

[35]When considering an extension of time in these circumstances the Tribunal is entitled to consider the apparent merits of the claims, but ought to notify the parties that that factor was to be taken into account. Although the Respondent’s solicitors had given notice that it was intended to apply for an order under rule 37 of the Employment Tribunals Rules of Procedure 2013, or under rule 39, I was not addressed on those points. If I had considered an order under either of those rules then I would have had to consider the prospects of the claims succeeding.

[36]For those reasons I decline to extend time in respect of the Claimant’s claims under the Equality Act 2010 and they are dismissed. This judgment does not affect the claim by the Claimant that her resignation on 30 June 2016 amounted to a ‘constructive’ unfair dismissal.

[37]As mentioned above, after this hearing I received a large volume of correspondence and documents principally from the Claimant. I have scanned the documents to see if there was anything in them which would obviously justify reconvening this hearing. The principal assertion made by the Claimant was that there was evidence that a statement by Ms Boland had been edited and then put in the bundle for this hearing. The Respondent’s solicitors later replied. In my view the point is of no relevance to the issue which I had to decide, which is whether the application of the statutory time limit meant that the Tribunal did not have the jurisdiction to consider the claims being made.

Evidence

[38]The unannounced inspection in 2014 highlighted a need to change the way the Respondent's services were delivered to improve the support to customers and to neighbours. A major problem identified by the inspection was the lack of support available at certain times during the day and at weekends and evenings to deal with issues that arose; there was a particular problem at weekends but also late at night. The problem faced by the Respondent was the ability to deal with such problems in circumstances where staff worked Monday to Friday between 9am and 5pm, with only limited cover at the weekends. The Respondent decided that it needed to change ways of working and extend the number of hours when they could provide cover. They therefore proposed a rota system which ensured that the necessary cover was provided at evenings and weekends.

[39]The effect of the above proposed changes on the Claimant would be that she would be allocated her share of weekend and evening shifts, including working on certain bank holidays, subject to any specific agreement following a flexible working request. The Respondent considered that the Claimant's contract allowed them to change the Claimant’s working practices because her contract expressly allowed the Respondent to require the Claimant to work a rota system. We were shown the contract of employment for the Claimant (the Look Ahead contract that transferred with the Claimant in 2011) which said as follows under “Hours”: Your normal working week will be 35 hours, excluding meal breaks. These hours are organised into a rota pattern that allows for 24-hour cover, seven days per week. Rotas may be changed from time to time to reflect the needs of the business. You will be given reasonable notice of any proposed rota changes

[40]However, in order to introduce a rota system, the Respondent took the view that it needed to increase the Claimant’s working hours from 35 to 37.5 hours a week.

[41]The Claimant was first told of the proposed changes during a supervision meeting on 8 May 2015, which was shortly after a period of absence due to a bad back (from 13 April 2015 to 6 May 2015). It is clear that there was some confusion on the part of the Respondent as to the extent, if any, that consultation was required to increase the Claimant's hours to 37.5. This is because when the Claimant's employment contract transferred to the Respondent in 2011, the measures letter confirmed that the Respondent had intended to increase working hours from 35 to 37.5. Those within the Respondent’s HR function had mistakenly assumed that there had already been formal consultation on the increase in hours during the TUPE consultation process.

[42]By the end of May 2015, the Claimant had agreed to work the rota, but the number of hours remained an issue for her due to what she claimed was the impact of working the additional hours on her children. In an email to the Respondent on 29 May 2015 [483] the Claimant wrote: I have agreed: To work via a rota system, 35 hours a week over 7 days (as stated in my contract) This includes on a rota basis, working Saturday, Sunday and Bank Holiday I have proposed times that meet my family well-being and the OHG service requirements to enhance the service offered to our Young People. Apart from a small change around the late shift hours, you have agreed the timescales suggested

[43]On Monday 8 June 2015, there was a meeting between Ms Boland, the Claimant and David Jones (Ms Boland’s manager) at which it was confirmed that the Claimant could continue to work 35 hours rather than the proposed 37.5 hours. This was in part due to an acknowledgment by the Respondent that the Claimant had not been consulted about this change during the TUPE process as originally thought.

[44]The Claimant said in evidence that on 22 May 2015, she was informed that the team’s previous PDRs had been deleted (allegation 13(f) above) from the Respondent's system. We accept that all of the team’s PDRs had been deleted, for reasons which could not be explained but which the Respondent acknowledged should not have happened.

[45]On 11 June 2015, Ms Boland informed the Claimant that Mr Jones would be attending Thicket Road on 12 June 2015 to collect a computer. On that day the Claimant was scheduled to attend prison to meet one of her young people who was being released that day. Ms Boland wanted to know whether the Claimant would be back at the home in time to meet Mr Jones. The Claimant informed Ms Boland that she expected to be back by 2pm. In fact, the Claimant did not arrive at the property to meet Mr Jones. The Claimant says that when she turned on her phone (it having been turned off up to that point) she received a call from Ms Boland who screamed down the phone at her in a high pitch voice that Mr Jones had arrived at the home and had been waiting for the Claimant (allegation 13(d) above). Having listened to the evidence of Ms Boland on this point, we find that Ms Boland was frustrated - even angry - but we do not accept that she screamed down the phone at the Claimant. We accepted the evidence of Ms Boland that screaming down the phone was not her style. We also concluded that if the Claimant had been so offended and humiliated by the behaviour of Ms Boland, that she would have raised it with someone or indeed complained directly to Ms Boland that her behaviour was unacceptable. Indeed, the Claimant met Ms Boland at a supervision meeting on 18 June 2015 and we considered that this would have been an ideal opportunity for the Claimant to raise the issue but that she did not do so. This led us to doubt the Claimant’s account of this incident and prefer the evidence of Ms Boland.

[46]Also, on 12 June 2015 at 15:11 [512] Mr Jones wrote an email to the Claimant as follows (allegation 13(e) above): Hi Sandra I am concerned that despite Sue Anne notifying you that I was coming to Thicket Road to pick up a computer, you were not present at the scheme. If you were unable to be there, then you could have notified myself or Sue-Anne and therefore I would not have wasted 3 hours in travelling time. I have asked Sue-Anne to investigate this matter and take appropriate action. Regards David

[47]The Claimant met with Mr Jones on 16 June 2015 when the Claimant shared how the above message made her feel. The Claimant claims that Mr Jones was unable to specify what type of investigation he had in mind. At the end of the meeting, the Claimant asked Mr Jones whether he or management had a problem with her, to which he replied that he did not. The Claimant said in evidence that this response by Mr Jones did not make her feel at ease and made her question whether other members of management had a problem with her. Having looked at the message, we concluded that there was nothing particularly wrong with Mr Jones wanting the incident investigated as at that time he clearly wanted to know why the Claimant had not turned up to the meeting as scheduled.

[48]At the supervision meeting with Ms Boland on 18 June 2015, the Claimant also asked Ms Boland whether she and Mr Jones had a problem with the way she worked, referring to her having stood her ground on the contract issue. Ms Boland replied that she did not.

[49]On 19 June 2015, the Claimant said in evidence that she was informed by Lisa Cavendish of the Respondent that Ms Boland had wanted to discipline her for not being willing to take on any sign ups. The Claimant was then allegedly told by Ms Cavendish that her computer had software on it that was capable of spying on her, in response to which the Claimant said that she had noticed a strange flashing light on her computer. The Claimant said that hearing this information made her believe she had become a target. A theme that came through in the Claimant's evidence was one of there being a conspiracy, and that management were colluding, to remove the Claimant. In evidence she said “I also believe that the Respondent’s action/behaviour towards me was premeditated, an act of colluding, whilst being fully aware of the impact of my disability, the effects/cause of my impairment and how actions/behaviour can impact my day to day duties and well-being”. We considered this generally but had little difficulty rejecting any suggestion of a conspiracy or collusion and concluded that there simply was not the evidence available to support such an allegation. We noted that Ms Cavendish was not called as a witness at the hearing and none of these allegations, including those relating to collusion, were put to the Respondent's witnesses in cross examination and therefore they did not have the opportunity to respond to the allegations directly.

[50]On 21 July 2015, Ms Boland sent the Claimant an email asking her to undertake sign ups, stating that she had been given considerable time to catch up with her workload. Ms Boland said in evidence that this was the first time that she had asked the Claimant to complete a sign up despite all her colleagues completing them. Ms Boland offered her assistance in the form of a colleague to help her complete the process and then further assistance from someone to check that the information collected was correct. By that stage the Claimant had also requested training on the signup process to help her, which the Respondent was agreeable to.

[51]In evidence, the Claimant alleged she had difficulty logging in to her email account via her work mobile after her shift had ended, saying that it would be restored the next morning when back on shift. The Claimant alleged that this had something to do with Ms Boland. We were not satisfied that the Claimant was being locked out of her emails as she alleged, or at all. This issue was considered when the Claimant later lodged her grievance, but her employer could not find evidence to support this allegation.

[52]In August 2015, Ms Boland was contacted by HR and alerted to the fact the the Claimant's absence in April/May 2015 had triggered an informal caution under the Respondent's sickness absence procedures. It became clear from Ms Boland’s evidence that she did not entirely agree with giving the Claimant a warning at that time, not least due to the potentially negative impact on her relationship with the Claimant. However, we are satisfied that the decision was not driven by Ms Boland and that she was simply doing as she was instructed. We also accept that such a warning was in accordance with the Respondent’s attendance policies and procedures.

[53]With regards the warning itself, the Claimant complained that a six-month monitoring period was not in accordance with the Respondent's attendance policy, which the Claimant said ought to have been three months. The Claimant also referred to a colleague in similar circumstances that was given a three-month monitoring period. During the hearing we considered the policy and concluded that there was an anomaly in that, depending on one’s interpretation of the policy, the required monitoring period could be interpreted as either three or six months and therefore that both periods were potentially acceptable within the meaning of the policy. When asked about this in evidence, Ms Boland said, which we accept, that her understanding of the monitoring period was that it was for six-months. We found it impossible to draw any useful comparison with the treatment of a colleague under the same policy as there was no direct evidence about the circumstances of that individual.

[54]On 18 August 2015, the Claimant ran a workshop at one of the homes on awareness of universal credit when she said that she experienced continual distractions in the form of telephone calls on the land line from Ms Boland. The Claimant alleged that this was an act of harassment (allegation 13(i) above). Ms Boland could not recall whether she did make any calls to the Claimant but accepted that she may have done. On the evidence, we were able to accept that Ms Boland did call the Claimant during the session. However, we also find that it was open to the Claimant to simply tell Ms Boland that she was busy training and that she would need to take the call later, something that was put to the Claimant and which we felt the Claimant did not really provide a credible answer to. We struggled to understand why this issue was the problem that the Claimant alleged.

[55]On 21 August 2015, despite the Claimant’s eventual agreement to the rota, the Claimant wrote an email to Ms Boland, following a conversation with ACAS, asking that she was not added to the bank holiday rota. Ms Boland sought advice from HR who again referred to the Claimant’s contract and the provision relating to hours (paragraph 39 above) which said that the contract could require the Claimant to work a rota pattern providing 24-hour cover, 7 days a week. The Respondent therefore concluded that the clause had to be interpreted as permitting the Respondent to require the Claimant to work bank holidays. The Respondent’s position on the issue was relayed to the Claimant by Ms Boland to which the Claimant responded that she was being bullied and harassed. The Claimant then failed to attend work on the August bank holiday (31 August 2015) as scheduled according to the rota.

[56]The Respondent wrote to the Claimant by letter dated 18 September 2015 to inform her that she was required to attend an investigation meeting to discuss the following matters: ▪ That she failed to attend work on 31 August 2015; ▪ Contacting a service user when off duty on 22 August 2015; and ▪ Attending work when not on shift on 23 August 2015.

[57]In evidence, Ms Boland explained that there were serious safeguarding issues that arose from contacting young people in their care when off shift. Similarly, Ms Boland said that there are a number of potential problems that can arise when someone attends work or performs their role when the Respondent does not know they are working or on shift. We had little difficulty in understanding the concerns alluded to by Ms Boland.

[58]On 27 September 2015, as part of an effort to collaborate with the National Citizen Project, the Respondent had arranged for the charity to supply a number of young persons to attend Thicket Road to decorate some communal areas at the scheme. On the day, approximately 17 young people attended the scheme with an adult supervisor, and we accept from the picture provided, that they left the scheme in a mess when they completed the day. It was agreed that a colleague, Edwardine Lockhart, would attend the scheme to assist the Claimant. On the evidence we find that she did attend the majority of the day, even though she was late arriving.

[59]On 29 September 2015, the Claimant was signed off sick due to stress. It is now known that the Claimant did not return to work.

[60]In January 2016, an investigation into the allegations at paragraph 57 above was completed. The Claimant was given the opportunity to contribute to the investigation by providing written answers to the allegations but chose not to do so, due to the stress she says she was suffering.

[61]The Respondent wrote to the Claimant by letter dated 25 January 2016 inviting the Claimant to a disciplinary hearing to answer the three allegations that had been the subject matter of the investigation.

[62]On 2 February 2016, the Claimant sent the Respondent a written grievance complaining of a range of matters including disability discrimination, bullying and harassment, health and safety, and lone working. Due to one aspect of the Claimant’s grievance being about the Respondent continuing with the above disciplinary process whilst she was off sick, the Respondent decided to suspend the disciplinary process pending the outcome of the grievance. We were told that the process was not restarted and never proceeded to a disciplinary hearing due to the Claimant’s later resignation.

[63]A grievance meeting was held on 17 March 2016 and there then followed interviews with other members of staff. The investigation was led by Jason Pryce-Kennedy.

[64]On or about 25 April 2016, the Claimant was sent a letter informing her of the outcome of her grievance. It was a detailed letter extending to five pages and attaching eighteen appendices. The outcome was that the grievance was not upheld.

[65]On 10 May 2016, the Claimant appealed against the outcome of her grievance in writing. An appeal hearing was held on 27 May 2016 which was chaired by Nuala Foley. Further to that meeting, the Claimant sent a letter to Ms Foley, as agreed, setting out clearly her grounds of appeal in as simplified a way as possible. That was a detailed letter of just over five pages. It was agreed that if the Claimant wished to submit new evidence then she could do so.

[66]Ms Foley wrote to the Claimant by letter dated 28 June 2016. In her letter, Ms Foley upheld one part of the grievance relating to not making adjustments (provision of Dragon Dictate and ClaroRead software) in a timely manner albeit she found that the delay was not caused by any inaction of Ms Boland. Ms Foley also commented that the tone of one of Ms Boland’s responses during the investigation into the Claimant’s grievance was not appropriate. Ms Boland said in evidence that she apologised if what she said came out in a particular way but she did not intend it to sound as Ms Foley had interpreted it. Ms Foley did not uphold the vast majority of the Claimant’s grievances, including those related to bullying and harassment by Ms Boland.

[67]The Claimant resigned with immediate effect by letter dated 30 June 2016. In it she said that she had exhausted every option available to address her problem at work and believed that the Respondent’s actions had fundamentally damaged the employment relationship. She referred to having been constructively dismissed. When the Claimant was asked during her evidence what it was about the appeal outcome, or the way the appeal was dealt with, that she was complaining about, bearing in mind she sought to rely on this as a last straw, the Claimant referred to being forced to work with Ms Boland again and being “put back in the firing line” with no safety or protection as an employee. It was put to the Claimant that what else could she expect if Ms Foley had not found in her favour in relation to the complaints about Ms Boland, but she continued to refer to not being protected. Turning to the hearing itself, the only complaint the Claimant appeared to have when asked specifically about it, was that she felt that she was “shut down” and prevented from speaking. Having listened to Ms Foley’s evidence on this issue, we reject any suggestion that the Claimant was not able to say what she wanted about her grievance, whether personally or via her union representative. We accept that given the list of topics that needed to be discussed, at times there was a need to move on to the next subject. Relevant law Discrimination arising from disability

Relevant law

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

[69]Section 15 EQA therefore requires an investigation into two distinct causative issues:(i) did the Respondent treat the Claimant unfavourably because of an (identified) ‘something’? and

(ii) did that something arise in consequence of the Claimant's disability? The first issue involves an examination of the state of mind of the relevant person within the Respondent (“A”), to establish whether the unfavourable treatment which is in issue occurred by reason of A’s attitude to the relevant ‘something’. The second issue is an objective matter, whether there is a causative link between the Claimant's disability and the relevant ‘something’. The causal connection required for the purposes of s.15 EQA between the ‘something’ and the underlying disability, allows for a broader approach than might normally be the case. The connection may involve several links; just because the disability is not the immediate cause of the ‘something’ does not mean to say that the requirement is not met. It is also clear from case law that it is only necessary for the Respondent to have knowledge (actual or constructive) of the underlying disability; there is no added requirement that the Respondent have knowledge of the causal link between the ‘something’ and the disability.

[70]If section 15(1)(a) is resolved in the Claimant's favour, then we must go on to consider whether the Respondent has proved that the unfavourable treatment is a proportionate means of achieving a legitimate aim.

[71]In terms of the burden of proof, it is for the Claimant to prove that she has been treated unfavourably by the Respondent. It is also for the Claimant to show that ‘something’ arose as a consequence of his or her disability and that there are facts from which it could be inferred that this ‘something’ was the reason for the unfavourable treatment. Failing to make reasonable adjustments

[72]A claim for failure to make reasonable adjustments is to be considered in two parts. First the Tribunal must be satisfied that there is a duty to make reasonable adjustments; then the Tribunal must consider whether that duty has been breached.

[73]Section 20 of EQA deals with when a duty arises, and states as follows: (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. ……… (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.

[74]Section 21 of the EQA states as follows:(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.

[75]The EQA says that a substantial disadvantage is one which is more than minor or trivial. Whether such a disadvantage exists in a particular case is a question of fact, applying the evidence adduced during a case, and is assessed on an objective basis.

[76]In determining a claim of failing to make reasonable adjustments, we must therefore ask ourselves three questions: ▪ What was the PCP? ▪ Did that PCP put the Claimant at a substantial disadvantage compared to someone who is not disabled? ▪ Did the Respondent take such steps that it was reasonable to take to avoid that disadvantage?

[77]The key points here are that the disadvantage must be substantial, the effect of the adjustment must be to avoid that disadvantage and any adjustment must be reasonable for the Respondent to make.

[78]The burden is on the Claimant to prove facts from which this Tribunal could, in the absence of hearing from the Respondent, conclude that the Respondent has failed in that duty. So here, the Claimant has to prove that a PCP was applied to her and it placed her at a substantial disadvantage. The Claimant must also provide evidence, at least in very broad terms, of an apparently reasonable adjustment that could have been made.

[79]It is a defence available to an employer to say “I did not know, and I could not reasonably have been expected to know” of the substantial disadvantage complained of by the Claimant. Victimisation

[80]Section 27 of EQA provides as follows:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

[81]The test to be applied here is threefold: ▪ Did the Claimant do a protected act? ▪ Did the Respondent subject the Claimant to a detriment? ▪ If so, was the Claimant subjected to that detriment because he or she had done a protected act, or because the employer believed that he or she had done, or might do, a protected act?

[82]The most important decision to be made by the Tribunal is the “reason why” the Respondent dismissed the Claimant. Was it because of the complaint alleged to be a protected act – or was it something different? Even if the reason for the dismissal is related to the protected act, it may still be quite separable from the complaint alleged to be a protected act.

[83]A person claiming victimisation need not show that less favourable treatment was meted out solely by reason of the protected act. As Lord Nicholls indicated in Nagarajan v London Regional Transport

1999 ICR 877

, HL, if protected acts have a ‘significant influence’ on the employer’s decision making, discrimination will be made out.

[84]Whilst the same burden of proof applies in such cases, namely that the Claimant must prove sufficient facts from which the Tribunal could conclude, in the absence of hearing from the Respondent, that the Claimant has suffered an act of discrimination, it is also perfectly acceptable to go straight to the “reason why” because that is the central question that the Tribunal needs to answer. Harassment

[85]Section 26 of EQA provides as follows: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. …….. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

[86]There are three essential elements of a harassment claim under s.26 ▪ unwanted conduct ▪ that has the proscribed purpose or effect, and ▪ which relates to a relevant protected characteristic.

[87]Sections 95(1)(c) Employment Rights Act 1996 states that there is a dismissal when an employee terminates the contract, with or without notice, in circumstances such that he or she is entitled to terminate it without notice by reason of the employer’s conduct.

[88]In order to claim constructive dismissal, the employee must establish that: ▪ there was a fundamental breach of contract on the part of the employer that repudiated the contract of employment; ▪ the employer’s breach caused the employee to resign; and ▪ the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.

[89]The breach may be of an express or implied term in a contract. Where the term is the implied term of mutual trust and confidence, the duty is that neither party will, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. This means that there are two questions to be asked when determining whether the term has, in fact, been breached. These are: ▪ was there ‘reasonable and proper cause’ for the conduct? ▪ if not, was the conduct ‘calculated or likely to destroy or seriously damage trust and confidence’?

[90]A breach of the implied term of trust and confidence may consist of a series of actions on the part of the employer that cumulatively amount to a repudiation of the contract. Typically, the employee resigns in response to a final incident that he or she regards as ‘the straw that breaks the camel’s back’. The last straw does not, of itself, have to amount to a breach of contract, still less be a fundamental breach in its own right. To constitute a breach of trust and confidence based on a series of acts (or omissions), the act constituting the last straw does not have to be of the same character as the earlier acts, and nor does it necessarily have to constitute unreasonable or blameworthy conduct, although in most cases it will do so. But the last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. An entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely but mistakenly interprets the act as hurtful and destructive of his or her trust and confidence in the employer. As always, the test of whether the employee’s trust and confidence has been undermined in this context is an objective one. An employee who claims unfair constructive dismissal based on a continuing cumulative breach is entitled to rely on the totality of the employer’s acts notwithstanding a prior affirmation of the contract, provided that the later act — the last straw — forms part of the series. Constructive dismissal as an act of discrimination

[91]Section 39(2) EQA states: An employer(a) (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment;

(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

(d) by subjecting B to any other detriment.

[92]Dismissal for the purposes of s.39(2) includes constructive dismissal, which occurs where the employee, owing to the repudiatory conduct of the employer, is entitled to resign and regard him or herself as dismissed. Jurisdiction

[93]Section 123 of EQA deals with time limits for bringing discrimination claims in the Employment Tribunal and says as follows: (1) [ Subject to [sections 140A and 140B] 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.

[94]An “act” under the EQA includes an “omission” (section 212(2) EQA). Section 212(3) EQA goes on to say that reference to an omission includes a reference to: ▪ A “deliberate omission” to do something. ▪ A refusal to do it. ▪ A failure to do it

[95]Where a claim arises out of an omission: ▪ The employer’s failure to do something is to be treated as occurring when the employer decided not to do it (section 123(3)(b) EQA). ▪ In the absence of evidence to the contrary, the employer is to be taken as deciding not to do something when it does an act inconsistent with doing it (or, if there is no inconsistent act, at the expiry of the period in which the employer might reasonably have been expected to do it) (section 123(4) EQA).

[96]Where an employer fails to make reasonable adjustments for a disabled employee simply because it fails to consider doing so, time runs at the end of the period in which the employer might reasonably have been expected to comply with its duty.

[97]Even if a claim is brought out of time, the Tribunal can extend time by such period as it thinks just and equitable (section 123(1)(b), EQA).

[98]The EAT in British Coal Corporation v Keeble

[1997] IRLR 336

held that the Tribunal’s discretion in these circumstances is as wide as that of the civil courts under s.33 of the Limitation Act 1980. This requires courts to consider factors relevant to the prejudice that each party would suffer if an extension were refused. These include: ▪ The length of, and reasons for, the delay; ▪ The extent to which the cogency of the evidence is likely to be affected by the delay; ▪ The extent to which the party sued had co-operated with any requests for information; ▪ The promptness with which the Claimant acted once they knew of the possibility of taking action; ▪ The steps taken by the Claimant to obtain appropriate professional advice once they knew of the possibility of taking action.

[99]While this may serve as a useful checklist, there is no legal obligation on the Tribunal to go through the list, providing that no significant factor is left out (London Borough of Southwark v Afolabi

[2003] IRLR 220

(CA)). The emphasis should be on whether the delay has affected the ability of the Tribunal to conduct a fair hearing. Submissions by the parties

[100]We considered carefully the submissions made by the parties and took these into account when reaching our decision. Analysis, conclusions and associated findings of fact

[101]We then turned to each of the allegations in the Scott Schedule and applied the above legal principles to our findings of fact. Failing to provide training (allegation 13(a)). Breach of s.21 EQA.

[102]We concluded that whilst training was not provided to the Claimant before she left, it would have been provided had she stayed. The delay in providing the training was due to the Claimant’s desire to have the software installed first. We accept that the delay in installing the software, and thereafter providing training, was longer than ideal, but we find that there was a combination of reasons for this (explained further at paragraphs 30-33 above) ending with the fact that the Claimant did not return to work. We concluded that the Respondent did all that it could to speed up the process as far as it was able to do so. In all the circumstances, we find that the Respondent did not breach their duty to make reasonable adjustments. We also acknowledge that the Respondent did not simply wait for the software to be installed but also made a number of adjustments in the meantime (as detailed at paragraphs 34-36). We concluded that the Respondent made such adjustments that were reasonable in the circumstances to ensure that the Claimant was not placed at a substantial disadvantage compared to someone who is not disabled. Not allowing the Claimant to use her own methodology (allegation 13(b)). Breach of s.21 EQA.

[103]We have found as fact that the Respondent did allow the Claimant to use her own methodology to assist her perform her role bearing in mind her disability. We rely on our findings of fact at paragraph 37 above. Accordingly, we do not find that the Respondent breached the duty to make reasonable adjustments. Not adjusting the Claimant’s workload (13(c)). Breach of s.21 EQA.

[104]We find that the Respondent did allow the Claimant additional time to complete her paperwork. The Claimant was relieved of her Duke of Edinburgh promotional duties, she was relieved of the requirement to carry out customer sign ups, new referrals were not being sent to her and she was not asked to carry out Health and Safety checks at the Wiverton Road scheme. Accordingly, we do not find that the Respondent breached the duty to make reasonable adjustments. Ms Boland shouting down the phone at the Claimant (allegation 13(d)).

[105]We do not accept the Claimant’s account of this incident and prefer instead Ms Boland’s evidence that she did not, neither was it her style to, scream down the phone at the Claimant as is alleged. There is no evidence that what Ms Boland did was in any sense whatsoever related to the Claimant's alone, the claim fails. However, we are also not satisfied that Ms Boland’s conduct had the purpose of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. Even if Ms Boland’s conduct had that effect, we do not believe it reasonable for it to have done so in the circumstances.

[106]Given our findings in relation to Ms Boland’s behaviour, we do not accept that what Ms Boland did can be interpreted as unfavourable treatment. Even if it was considered unfavourable treatment, the reason Ms Boland telephoned the Claimant was because she did not arrive for a meeting with Mr Jones. We do not accept there is any evidence to suggest that the reason the Claimant did not arrive for the meeting arose in consequence of the Claimant's disability. We believe that Ms Boland was perfectly justified in calling the Claimant and questioning her as she did and therefore even if such conduct could be considered unfavourable treatment arising in consequence of disability, we believe it was justified. Mr Jones acting in an intimidatory manner (allegation 13(e)).

[107]There is no evidence that what Mr Jones did by sending the email (see paragraph 46 above) was in any sense whatsoever related to the Claimant's alone, the claim fails. However, we are also not satisfied that Mr Jones’ email had the purpose of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. Even if Mr Jones’ email had that effect, we do not believe it reasonable for it to have done so in the circumstances.

[108]Our conclusion is the same as that set out in paragraph 106 above. Deletion of time sheets (allegation 13(f)).

[109]Firstly, there is no evidence that time sheets or PDRs were in fact deleted. We accept that they may no longer exist, but we do not know why that is, and importantly neither does the Claimant. We accept the Respondent's evidence that it is not just PDRs belonging to the Claimant that are no longer available, but those of other employees as well. Even if they were deleted, there is no evidence whatsoever that this was related to the Claimant's alone, the claim fails. However, we are also not satisfied that there is evidence which shows that it was done with the purpose of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. Neither do we believe it was reasonable for it to have had that effect in the circumstances.

[110]Even if we accepted that the time sheets and PDRs were deleted and that their deletion amounted to unfavourable treatment, we do not know why they were deleted and neither does the Claimant. We cannot therefore conclude that the reason for the deletion of the time sheets and/or PDRs was because of something arising in consequence of disability. Instructing the Claimant to take on more work (allegation 13(g)).

[111]This was not put to Ms Boland during cross examination. We refer to our findings of fact at paragraph 50 above. We do not accept that asking the Claimant to take on “sign ups” can be interpreted as unwanted conduct related to the Claimant's disability, or any relevant protected characteristic. For this reason alone, this claim fails. We do not accept that it was done with the purpose of violating the Claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. Neither do we think it reasonable for it to have had that effect in the circumstances.

[112]We do not accept that instructing the Claimant to perform her job can be interpreted as unfavourable treatment. The reason for wanting the Claimant to take on more work was to assist with coping with the workload of the team. We do not accept, therefore, that the reason for requiring the Claimant to take on more work was because of something arising in consequence of disability. Issuing the Claimant with an informal warning with a sixth month monitoring period (allegation 13(h)).

[113]We find that a six-month monitoring period was allowed under the policy notwithstanding its anomaly. It related to a period of absence for something wholly unconnected with the Claimant’s disability (i.e. a bad back) or in fact any protected characteristic. We do not believe the application of the policy to the Claimant was done with the purpose of violating the Claimant's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. Neither do we find that it was reasonable in the circumstances for it to have had that effect. Breach of s.27 EQA

[114]We find that there was no protected act, a fact admitted by the Claimant during the hearing. Without a protected act, we find that the Respondent did not victimise the Claimant. Ms Boland interrupting the Claimant during her training session (allegation 13(i)). Breach of s.26 EQA.

[115]We refer to our findings at paragraph 54 above. There is no evidence that what Ms Boland did was in any sense whatsoever related to the Claimant's alone, the claim fails. However, we are also not satisfied that Ms Boland’s conduct had the purpose of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. Even if Ms Boland’s conduct had that effect, we do not believe it reasonable for it to have done so in the circumstances. Starting but not completing a disciplinary process (allegations 13(j) and (k)). Breach of s.26 EQA.

[116]We concluded that the Respondent acted perfectly reasonably in investigating acts of misconduct. The furthest the proceedings reached was an invite to a disciplinary hearing, but this did not go ahead because by that stage the Claimant had raised a grievance. There is no evidence that what the Respondent did was in any sense whatsoever related to the Claimant's alone, the claim fails. However, we are also not satisfied that starting a disciplinary process had the purpose of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. Even if it had that effect, we do not believe it reasonable for it to have done so in the circumstances. Leaving the Claimant in charge of approximately 20 young people (allegation 13(l)). Breach of s.26 EQA.

[117]We rely on our findings at paragraph 58 above. We find that the Claimant could have taken steps to have prevented the young persons entry to the scheme if she wanted or was worried about anything or if she wanted to wait for her colleague to arrive. There is no evidence that what the Respondent did was in any sense whatsoever related to the Claimant's disability, or indeed any relevant protected characteristic. We conclude that it was not reasonable for the Claimant to believe such a matter violated her dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for her. Neither do we accept that the Respondent acted with this purpose in mind. Failing to deal with the appeal hearing properly (allegation 13(m)). Breach of s.15 EQA.

[118]This was put forward as a last straw and as a discriminatory act. We could not point to any unfavourable treatment given our findings in relation to the appeal hearing (paragraphs 65-67). We find that the appeal hearing was handled fairly and was very thorough. We could find no criticism of it. Even then, it is difficult to seen how the alleged unfavourable treatment was because of something arising in consequence of disability.

[119]For the above reasons, all of the discrimination claims are not well founded and are dismissed.

[120]The Tribunal does not accept as fact the criticism by the Claimant of the appeal. Indeed, it could find no criticism of the way in which the appeal was handled or how Ms Foley reached the conclusions that she did. For this reason, we could not find anything which could be considered a “last straw”. However, even if the fact of not determining the appeal in the Claimant's favour, was a “last straw”, we concluded it could not be considered a breach of contract in itself. Further, we considered very carefully what the Respondent did over the period alleged by the Claimant, we found no evidence from which we could conclude that the Respondent conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. Accordingly, we conclude that the Claimant was not constructively dismissed. Time limits

[121]In light of our above findings, we did not go on to deal with the time points. ………………………………………………

Relevant law

[1]Rule 70 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides that an Employment Tribunal may, either on its own initiative or on the application of a party, reconsider a judgment where it is necessary in the interests of justice to do so. On reconsideration, the judgment may be confirmed, varied or revoked.

[2]An application for reconsideration shall be presented in writing (and copied to all of the other parties) within 14 days of the date upon which the written record of the judgment was sent to the parties. In this case a reserved judgment was sent to the parties on 18 March 2020.

[3]A letter by the Claimant seeking a reconsideration was received by the Tribunal on 2 April 2020. On the face of it, therefore, the application is technically out of time. I have, however, exercised my discretion to extend time given the very short period between when the 14 days expired and when the application was received.

[4]Under Rule 70, a judgment will only be reconsidered where it is necessary in the interests of justice to do so. This allows a Tribunal a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. The discretion must be exercised judicially, which means having regard not only to the interests of the party seeking the reconsideration, but also the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.

[5]The procedure upon a reconsideration application is for the Employment Judge that heard the case to consider the application and determine if there are reasonable prospects of the judgment being varied or revoked. Essentially, this is a reviewing function in which I must consider whether there is a reasonable prospect of reconsideration in the interests of justice. There must be some basis for reconsideration. It is insufficient that a Claimant simply disagrees with the decision. If I consider that there is no such reasonable prospect, then the application shall be refused. Otherwise, the original decision shall be reconsidered at a subsequent reconsideration hearing.

[6]The application for reconsideration is three pages long. Having read the application carefully, I have struggled to understand the basis upon which the Claimant believes reconsideration should be granted. At the beginning of her letter, the Claimant writes: “We would like to ask the Judge to reconsider the ruling as the steps did not remove the disadvantage to the claimant as follows..”. The letter then goes on to say the following (sic): “As it is felt that the ruling focused on the disadvantage that was determined to have avoided was after the duty arise appose to the disadvantage the claimant was at, at the time the duty arise to for reasonable adjustment arise. it does not consider the lack of auxiliary aid, E.g. equipment, providing supplementary or additional help and support in any interim. She pleaded for help. This impacted on the claimant substantially. The disadvantage was not avoided at the time duty arise.”

[7]The Claimant appears to complain that the reasonable adjustments did not take away the disadvantage suffered by her and that her workload was no different to her colleagues; secondly that the reasonable adjustments were only made after the duty arose. She supports these complaints by, in effect, taking issue with the factual findings made by the Tribunal. Indeed much of the application for reconsideration is, in effect, the Claimant stating where she disagrees with the findings made rather than pointing to an error made by the Tribunal.

[8]The Claimant refers to the case of The Home Office (UK Visas & Immigration) v Ms P Kuranchie

UKEAT/0202/16

albeit she does not state expressly the principle from the case she wishes to rely on. Aside from dealing with a case of someone with dyslexia, this case endorsed the approach taken by the Court of Appeal in Burke v The College of Law and anor

2012 EWCA Civ 87

, CA where it was said that a holistic approach should be adopted when considering the reasonableness of adjustments in circumstances where it takes a number of adjustments, working in combination, to ameliorate the substantial disadvantage suffered by the Claimant.

[9]In the Claimant's case, it was very much necessary to take a holistic approach to the obligation to make reasonable adjustments, when looking at each complaint, not least because there were a number of different adjustments that were made by the Respondent over a period of time. In her application for reconsideration, the Claimant sets out why she believes the reasonable adjustments made were not sufficient.

[10]As I have said, the application essentially takes issue with a number of conclusions or findings of fact in the judgment. No procedural irregularity or error of law on the part of the Tribunal is identified. The findings of fact were made after considering all of the evidence. The fact that the Claimant points in her application to evidence already considered by the Tribunal that she says is supportive of her case, is not sufficient to allow an application for reconsideration. In the course of this hearing lasting 7 days, the Tribunal considered lots of documentary and oral evidence and it would be wrong to consider now, items of evidence in isolation, when at the hearing the Tribunal considered this evidence against all the other evidence, before reaching its decision.

[11]I am satisfied that the Tribunal reached findings of fact based on the evidence and applied the law correctly to those facts in reaching its decision. The interests of justice do not require there to be a reconsideration of the judgment. Accordingly, the application for reconsideration fails and stands dismissed. ………………………………………………