Mrs T Munim v Boots Management Services Ltd: 2302800/2022

EMPLOYMENT TRIBUNALS

Case No 2302800/2022

Between

Mrs T MunimClaimant

Boots Management Services LtdRespondent

Before

Employment Judge Leith

In person for claimant

Ms Anderson (instructed by Counsel) for respondent

Date 25 June 2024

JUDGMENT

[1]The complaint of direct age discrimination fails and is dismissed.

[2]The complaint of direct race discrimination fails and is dismissed.

[3]The complaint of direct religion and belief discrimination fails and is dismissed.

[4]The complaint of direct disability discrimination fails and is dismissed.

[5]The complaint of discrimination arising from disability fails and is dismissed.

[6]The complaint of failure to make reasonable adjustments fails and is dismissed.

[7]The complaint of unfair dismissal fails and is dismissed. JUDGMENT having been sent to the parties and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]The claimant claims direct race discrimination, direct religion or belief discrimination, direct age discrimination, direct disability discrimination, discrimination arising from disability, failure to make reasonable adjustments, and unfair dismissal.

[2]A Preliminary Hearing was conducted by Employment Judge Fowell on 26 June 2023 [65]. EJ Fowell set out a list of issues following that Preliminary Hearing. The parties agreed at the start of the hearing that the list of issues accurately captured the issues in the claim. The issues were as follows: “Time limits 44. All claims have to begin with early conciliation. Mrs Munim contacted ACAS on 8 June 2022, just under three months from the date of her dismissal. This process has to begin within that three month period and it follows that any acts or omissions which took place on or before 9 March 2022 are outside the normal time limit. This was the day before the Capability Review Meeting which resulted in Mrs Munim being dismissed. 45. Consequently, her claim of unfair dismissal is in time, together with her claims that her dismissal was an act of discrimination. Earlier events however are outside the normal time limit. To pursue those complaints, Mrs Munim must prove a) the discrimination was in fact conduct extending over a period of time and ending after this last act, or b) it would be just and equitable to extend the normal time limit. That depends on all the circumstances of the case and it will be for Mrs Munim to satisfy the Tribunal on this issue. 46. What was the reason for Mrs Munim’s dismissal? The company says that it was on grounds of her long absence from work, i.e. “capability”, which is the relevant term used in the Employment Rights Act 1996. 47. Did the company act reasonably in all the circumstances in treating that as a sufficient reason to dismiss Mrs Munim? The Tribunal will usually decide, in particular, whether the company a) genuinely believed that she was no longer capable of performing her duties b) adequately consulted her c) carried out a reasonable investigation, including finding out about the up-to-date medical position, and d) could reasonably be expected to have waited longer before dismissing her? 48. The burden of proof is neutral here but Mrs Munim says that her dismissal was unfair because she would have been ready to return within a few more months. 49. If the procedure was unfair, what difference would a fair procedure have made to the outcome? 50. Did Mrs Munim have a physical or mental impairment at the material time, namely anxiety and depression? (She also had a preexisting diagnosis with OCD and developed agoraphobia during the period in question, linked to the attacks on her family home. However, on the basis that these mental health conditions are linked it is simpler to record her disability as one of anxiety and depression, encompassing those additional aspects.) 51. If so, did the impairment have a substantial adverse effect on her ability to carry out normal day-to-day activities? 52. If so, was that effect long term? In particular, when did it start and, at the material time (date) a) had it lasted for at least 12 months, or b) was it likely to last at least 12 months? 53. Note that in assessing the likelihood of an effect lasting 12 months, account should only be taken of the circumstances at the time the alleged discrimination took place, not afterwards. 54. Were any measures taken to treat or correct the impairment? But for those measures would the impairment have been likely to have had a substantial adverse effect on Mrs Munim’s ability to carry out normal day-to-day activities? Direct discrimination on grounds of age, race, religion or 55. Did the company, in a) failing to promote her to dispensary assistant b) Ms Gordon regularly scrutinizing her on CCTV c) Ms Gordon and Ms Gemma Nelson suggesting to her that during her sickness absence that• she should resign and

• that they had been told to say this by People Point, the HR centre d) sharing information inappropriately about her mental health e) disregarding her grievance f) pressuring her to have meetings g) ignoring her request for a home visit h) ignoring or not replying to her emails i) taking disciplinary action against her inappropriately, and j) dismissing her treat her less favourably than it treated or would have treated someone else in the same circumstances apart from her age, race, religion or disability. In particular, for her complaint of age discrimination Mrs Munim compares her circumstances with her colleagues named Sianna, Elizabeth and Bintu. 56. The company disputes any age discrimination and has not sought to argue that it was a proportionate means of achieving a legitimate aim. 57. This involves unfavourable treatment because of something arising in consequence of Mrs Munim’s disability. 58. Firstly, did the company know that Mrs Munim had a disability, or ought it to have known? 59. If so, what unfavourable treatment did she receive? She relies on the points at paragraph 54 (c) to 54 (h) above. 60. Can Mrs Munim prove that the company treated her unfavourably because of the “something arising” in consequence of her disability, namely: a) her absence from work b) her reluctance to attend meetings c) her preference for written communication 61. Can the company show that this treatment was a proportionate means of achieving a legitimate aim? The company will need to set this out the aim and its case on proportionality in the Amended Response. 62. Mrs Munim says that the company had a provision, criterion or practice of expecting face to face meetings or conversations to discuss sickness absence. 63. If so, did it put her at a substantial disadvantage compared with others in that a) her condition made it difficult for her to have such meetings or conversations, and b) she preferred written communications as a result 64. If so, did the company take such steps as were reasonable to avoid that disadvantage? The burden of proof does not lie on Mrs Munim, but she says that a home visit should have taken place before she was dismissed. 65. Did the company not know, or could the company not reasonably have been expected to know, that she had a disability or was likely to be placed at this disadvantage? Remedies 66. If Mrs Munim wins her claim for unfair dismissal she may be entitled to a) reinstatement or re-engagement b) compensation for loss of earnings and/or c) an uplift in respect of any failure to follow the ACAS Code in relation to her dismissal or in relation to her grievance. 67. If she wins her discrimination claim she may also be entitled to a) compensation for injury to feelings b) interest and/or c) a declaration or recommendation.

[3]As captured in the list of issues, each of the allegations of direct discrimination were said to be because of four different protected characteristics – age, race, disability, and religion or belief. The Claimant explained in her evidence that: 3.1. Allegation(a) was said to be direct discrimination because of age and/or race. That was the only allegation of direct age discrimination. 3.2. Allegation

(b) was said to be direct discrimination because of race and religion or belief. 3.3. The remaining allegations were said to be because of race, religion or belief and/or disability. Procedure, documents and evidence heard We heard evidence from the Claimant.

[5]On behalf of the Respondent we heard evidence from: 5.1. Gemma Nelson; 5.2. Evette Gordon; 5.3. Jose Gali-Reinoso; 5.4. Saba Pillai; and 5.5. Smitesh Patel.

[6]Each of the witnesses gave their evidence by way of a pre-prepared statement, on which they were cross-examined. In the Claimant’s case, she had also tendered a document entitled “My response to the Respondent’s ET3”, which she explained she had intended to stand as part of her evidence.

[7]On the third day of the hearing, the Claimant indicated that she felt that the Respondent was at an advantage because they had seen her witness statement before she had seen theirs. We noted that based on the correspondence on the Tribunal file: 7.1. The Claimant attempted to send her witness statement to the Respondent 16 February 2024. 7.2. The Respondent’s solicitor, Mr Noblet, had in correspondence promptly and repeatedly denied receiving a witness statement on that date. 7.3. It appeared that the parties had then both, for different reasons, refuse to send their statements to each other. In the Claimant’s case, that was because she believed she had already sent her statement to the Respondent. In the Respondent’s case, it was because they did not want to run the risk of the Claimant seeing their statements before they had seen hers. 7.4. The parties did eventually exchange witness statements on 4 April 2024. 7.5. In response to various pieces of correspondence from the parties, the Tribunal wrote to both parties on 19 April 2024. The Claimant understood that letter to contain a positive finding that the Respondent had received the Claimant’s witness statement on 16 February 2024. However it contained no such finding.

[8]We therefore explained to the parties that on the evidence available to us, the first time either party had seen the other’s witness statements was on 4 April 2024. Therefore neither party was at a forensic advantage, and both parties had had around five and a half weeks to prepare for the hearing before us.

[9]We had before us a bundle of 753 pages. References in [square brackets] within this judgment are to page numbers within that bundle.

[10]At the end of the evidence we hard submissions from Ms Anderson, and from the Claimant. Ms Anderson had initially anticipated that she would rely on written submissions. Evidence concluded at around quarter past one on the fourth day of the hearing. We indicated that we would reconvene at 14:45, to allow Ms Anderson to circulate her written submissions, and the panel (and the Claimant) time to read them.

[11]When we reconvened, Ms Anderson had not yet finalised her written submissions. We indicated that we would therefore hear oral submissions instead. She estimated that her oral submissions would take 30 minutes. We explained that we would give her 40 minutes.

[12]We reminded Ms Anderson when 30 of the allocated 40 minutes had elapsed, at which point she was addressing the fourth (of ten) factual allegations relied upon by the Claimant. When 40 minutes elapsed, Ms Anderson had not covered all of the factual allegations. She was given some extra time to conclude her submissions. She continued to make submissions. She was asked to wrap her submissions up. At 53 minutes, we applied a guillotine, and refused to hear further submissions on behalf of the Respondent. We then took a short break to allow the Claimant to gather her thoughts before hearing her closing submissions.

[13]The Claimant expressed a number of times during the hearing that she was representing herself, and that she was concerned about her ability to do so. It is only right that we record that the Claimant represented herself with considerable care and skill throughout. Factual findings

[14]We make the following findings on balance of probabilities. We have not dealt with every area canvassed before us; rather, we have focused on those necessary to reach a conclusion on the issues in the claim.

[15]The Respondent operates a chain of high street pharmacists.

[16]The Respondent had in force at the relevant times an absence policy. The policy defined long term absence as absence lasting longer than 14 days. In summary, the relevant parts of the policy provided as follows: 16.1. During absence, colleagues must speak to their line manager in the first day of absence and report the reason for absence, and they must provide a fit note from their GP for absence continuing more than 7 days [115] 16.2. Employees are expected to agree to a request from their line manager to undergo a consultation with Colleague Health and for a report to be produced by them [115]. 16.3. In cases of long term absence, the process was for: [117] 16.3.1. A support meeting to take place at 4 weeks absence 16.3.2. A long term absence review would take place at 18 weeks absence (following Colleague Health advice) 16.3.3. A Capability Review Meeting would take place following 26 weeks absence and where the medical evidence suggested that the employee was not likely to return to work in a reasonable acceptably timescale, with one possible outcome being dismissal. 16.3.4. A right to appeal the outcome of a capability review meeting

[17]The Respondent also had in force a grievance policy [132] and associated guidance [134]. The guidance provided that in respect of formal grievances, the manager would meet with the employee, then investigate the grievance, and provide an outcome in writing. The guidance provided that employees could appeal the outcome of a formal grievance.

[18]The Respondent also had in force a career break policy [139]. The policy provided that colleagues with more than 1 year’s service could apply for a career beak lasting between one and two years. In order to take up a career beak, an employee would need to resign, and this would break their continuity of service. Upon return from their career break, they would need to apply for a permanent role.

[19]The Respondent also had a force an extended unpaid leave policy [712]. The policy provided that colleagues could request extended unpaid leave of up to three months, although managers had discretion exceptionally to agree to a longer period of extended unpaid leave.

[20]The Claimant commenced employment with the Respondent in October 2008. She employed as a Customer Adviser, then as a Healthcare Adviser. She worked in the Respondent’s Brixton store. During the latter part of her employment she worked one day per week only, on Sundays. This was because she had caring responsibilities towards her young children.

[21]The store manager of the Brixton store was Evette Gordon. Because the Claimant only worked Sundays, and because of overlapping periods of absence, the Claimant never actually met Ms Gordon during her employment. Gemma Nelson was the Assistant Store Manager, and in that capacity she was the Claimant’s line manager. Once again, she relatively rarely met the Claimant as she generally worked from Monday to Friday. Ms Gordon reported to Ryan Bleasby, Area Manager.

[22]The Claimant alleged in her claim that Ms Gordon watched her on CCTV. She accepted in cross-examination that she had no evidence of this. Her evidence was that someone else had told her about it. She did not name the person who had told her, and she indicated that that individual had not been willing to be a witness within these proceedings. That allegation was denied by Ms Gordon. Ms Nelsons’ evidence was that she had never seen Ms Gordon watching the Claimant on CCTV. We accept the evidence of Ms Nelson and Ms Gordon. The Claimant had no direct evidence of Ms Gordon specifically watching her on CCTV. On the evidence before us, we find that she did not do so.

[23]The Claimant referred in her claim to three colleagues who she said were promoted (when she was not). Her evidence was that they were promoted in 2019 or early 2020. Ms Nelson’s evidence regarding the three colleagues named by the Claimant was as follows: 23.1. The first, Elizabeth Tye, was customer adviser in the store. She was never promoted out of that role. 23.2. The second, Bintou Fall, was a customer adviser who worked in the pharmacy rather than the shop floor. She was not promoted out of the role of customer adviser, although she did work in the pharmacy. While she was working in that role for the Respondent, she was also studying to be a pharmacist at University. 23.3. The third, Sienna Roberts, was initially employed as a customer adviser in the store. She took part in a pharmacy adviser programme run by the Respondent, which was open to all Customer Advisers who worked 15 hours per week or more. She completed that course, and then successfully applied for a Pharmacy Adviser vacancy within the store. The Claimant had not completed the course and was therefore not eligible to take up a Pharmacy Adviser role.

[24]The Claimant’s own evidence was that she did not know that Elizabeth Tye or Bintou Fall had been promoted, but that she had seen them in the pharmacy. She appeared to be suggesting in her evidence that they had been engaging in activities beyond the role of Customer Adviser, rather than that they had been promoted. That is, of course, an entirely different allegation.

[25]The Claimant did not suggest that she had applied unsuccessfully for any promoted roles or opportunities.

[26]We accept Ms Nelson’s evidence regarding the three comparators named by the Claimant. The evidence that she gave was evidence which would be within her knowledge (as Assistant Store Manager). The Claimant could give no evidence to gainsay what Ms Nelson said.

[27]From the onset of the COVID19 pandemic, the Claimant was absent from work on a combination of holiday and authorised unpaid leave. From May 2020, the Respondent’s Brixton store was closed. The Claimant was placed on furlough leave.

[28]In October 2020, the Respondent planned to reopen the Brixton store. On 7 October 2020, Ms Gordon telephoned the Claimant to tell her that she would need to return to work. The Claimant informed Ms Gordon that she was not able to return to work. She explained that she had anxiety and depression. The Claimant asked about the possibility of a career break. Ms Gordon explained that she would look into it.

[29]The Claimant’s evidence was that she was told that she would have to go work in Sutton. Ms Gordon denied that. We consider that it is a surprising detail for the Claimant to have invented or completely misremembered. We find that there was some discussion about the possibility of the Claimant relocating to Sutton.

[30]The Claimant appeared to suggest in her evidence that Ms Gordon suggested in that conversation that she resign. There was no suggestion in any of the contemporaneous correspondence that Ms Gordon had suggested resignation to the Claimant on 7 October 2020. Given how meticulously the Claimant documented other points, that is noteworthy. We find that Ms Gordon did not suggest during the conversation on 7 October 2020 that the Claimant should resign.

[31]On or around 16 October 2020, the Claimant spoke to Ms Nelson. Ms Nelson explained how the career break policy worked. She explained to the Claimant that if she took a career break, she would have to return to work on a 3 months temporary contract, and would then have to find a permanent role during that time or be dismissed. She explained that the decision on whether to grant a career break would be taken by Ryan Bleasby. We find that Ms Nelson gave the Claimant a deadline for making the application, as the Respondent would have needed to have had some certainty about whether the Claimant would be returning to the store. Ms Nelson explained to the Claimant that her options, if she did not return to work, were using up holiday, going off sick, taking a period of unpaid leave, taking a career break, or resigning from the Respondent’s employment.

[32]The Claimant emailed Ms Nelson on 22 October 2020 [147]. She asked some questions about the career break scheme. She also mentioned that she was concerned that, on returning from a career break, she would be put on a 3 month temporary contract and could then be let go if there was no role for her.

[33]On the same day, the Claimant emailed Ryan Bleasby [150]. She summarised the discussions she had had with Ms Gordon and Ms Nelson. She mentioned her understanding that Mr Bleasby was awaiting an answer from her regarding the career break. She then asked if there were any other options.

[34]Mr Bleasby responded on 24 October 2020 [155]. He noted that colleagues at the Brixton store were expected to return to work, and referred to the fact that there were supportive measures in place for colleagues, and that a risk assessment would be caried out. He referred to the possibility of the Claimant temporarily relocating to a store closer to home if she was concerned about commuting, or temporarily reducing her hours. He summarised how the career break provision operated. He then reminded the Claimant that Ms Nelson was her point of contact, and that any escalation should be to Ms Gordon as the store manager.

[35]The Claimant understood Mr Bleasby’s email to be inconsistent with what she had been told by Ms Nelson, namely that Mr Bleasby would be the decision-maker on any application for a career break. We do not read the email in that way at all. What Mr Bleasby was informing the Claimant was that she should continue to liaise with her line manager, Ms Nelson, in the first instance. That is not inconsistent with him being the manager who would have ultimate authority over any career break. He did not suggest within his email that he would not make the decision on career break; nor did he suggest that he had no involvement.

[36]The Claimant responded on 25 October 2020 [157]. She explained that she had contact Mr Bleasby because Ms Nelson and Ms Gordon had been unable to give her any other suitable options beyond a career break, so she had contacted a “higher authority” to get information on what else might be available. She noted that Brixton was the closest branch to her home, and indicated that she had been told that she would be relocated to Sutton. She concluded by asking Mr Bleasby if there was any other suitable leave which would not put her job at risk.

[37]Mr Bleasby responded on 26 October 2020 [159]. He reiterated what he had set out in his previous email about the options available to the Claimant. He asked the Claimant to keep conversation between herself and her line managers, and indicated that he had asked Ms Gordon to call her.

[38]On 28 October 2020, the Claimant emailed Ms Gordon [160]. She summarised the emails she had had with Mr Bleasby. She indicated that she was reluctant to take a career break as it involved a chance of losing her job. She asked Ms Gordon to tell her about any other suitable options other than career break.

[39]The Claimant and Ms Gordon spoke on 30 October 2020. The conversation was a lengthy one (lasting around an hour). The Claimant explained that she had concerns about returning to work. She explained that she had concerns about to the risk to her children (for whom she was the primary carer). She also explained that she had had significant issues with her neighbours, and that she had her family had been the victims of hate crime. She went into some details regarding her medical situation.

[40]It was agreed that the Claimant would be referred to Occupational Health for advice. In the interim, she was given a period unpaid leave. Ms Gordon’s evidence was that she told the Claimant that the unpaid leave would last for 12 weeks.

[41]Following the telephone call, Ms Gordon emailed the Claimant on 2 November 2020 to confirm what they had discussed [169]. In that email, she said this regarding the unpaid leave: “In the meantime, we will continue to put you through as unpaid, until we have a clear understanding and recommendations from Colleague Health. I also emphasised to you that we cannot submit you as unpaid indefinitely, we need to come to some agreement to aid/support your return to work.

[42]She also said this regarding the Occupational Health report: “As discussed, I have suggested that we refer you to Colleague Health as support to help you through all your concerns. I assured you that there is no need to be anxious or worried about speaking to Colleague Health as I have been through this myself, they are simply there as support and it is strictly confidential. I explained that only myself will see the summary of the recommendations from Colleague Health, only if you give authorisation for me to receive the report.”

[43]We find that what the Claimant was told orally about the unpaid leave was broadly the same as what was set out in Ms Gordon’s email of 2 November 2020. It would be surprising if Ms Gordon had said one thing orally on 30 October 2020, then something different in an email three days later. We consider that Ms Gordon’s evidence regarding that aspect of the telephone call on 30 October 2020 mistakenly reflected what she had later come to understand about the unpaid leave policy, rather than what was in her mind on 30 October 2020. We find that what the Claimant was told was broadly what was set out in the email; namely, that the unpaid leave would last until the Occupational Health advice had been received and considered, although it could not las indefinitely.

[44]Ms Gordon then asked Ms Nelson to arrange the Occupational Health referral. Ms Gordon’s oral evidence was that it would normally be an employee’s line manager who actioned an Occupational Health referral. That was consistent with what the Respondent’s policy said. Her evidence in her witness statement was that the reason she asked Ms Nelson to action the referral was because she was shielding at the time. Her oral evidence was that she did not start shielding until 21 December 2020, and that consequently she was not shielding at the time that she asked Ms Nelson to action the referral. Therefore we consider that the evidence in her witness statement, that she asked Ms Nelson to action the referral because she was shielding, was mistaken. Rather, we consider that Ms Gordon asked Ms Nelson to arrange the referral because she was the Claimant’s line manager.

[45]Ms Nelson made an error with the referral, which meant that it was not immediately actioned. It was followed up after a later conversation between the Claimant and Ms Gordon.

[46]The Claimant was seen by Occupational Health on 19 January 2021. She did not immediately email her consent to the report being released to the Respondent. This was due to a misunderstanding on her part; she believed she had already consented, and therefore did not understand that she needed to actively confirm her consent. Her formal consent to release the report to Ms Gordon was therefore not given until 7 March 2021 [171].

[47]In the interim, the Respondent had limited the Claimant’s unpaid leave to 12 weeks. He unpaid leave expired on 31 January 2021. The Claimant was put on annual leave thereafter.

[48]On or around 5 March 2021 Ms Nelson spoke to the Claimant. Her contemporaneous note of the conversation noted that she gave the Claimant three options. She could return to work, possibly on a rehabilitative basis (that is, with reduced hours or a move of store). Or if she did not want to return to work, she would need to either resign her position or contact her GP to be declared unfit for work. Her note then said this [209] “I also explained that her holiday has now run out and she has had 3 months unpaid since her conversation with Evette Gordon to which Tamana seems to be under the impression that going to Colleague Health means she will be able to be off indefinitely with no time limit.”

[49]Ms Nelson’s note suggested that she had spoken to People Point at around the same time.

[50]The Claimant’s evidence was that she was not aware she was on three months’ leave. Her evidence was that Ms Nelson “suggested” resignation to her during the phone call. Her evidence was also that she had made a note of the phone call, and emailed it to Ms Nelson. In that note she recorded that she was told by Ms Nelson that People Point (the Respondent’s employee relations service) had suggested the options, including resignation.

[51]Ms Gordon received the report on 11 March 2021. She was shielding at the time. She emailed Ms Nelson a summary of the report and asked her to action it [185]. Her evidence was that she did not send a full copy of the report to Ms Nelson. That was also Ms Nelson’s evidence. We find that Ms Nelson was never sent a full copy of the report. That is consistent with Ms Gordon’s email. The email did not suggest that the report was attached, and there would have been no reason for Ms Gordon to have summarised the report in the email if she was sending the full report.

[52]The report noted that the Claimant was very concerned about the risk of contracting COVID. It referred to an underlying tendency towards anxiety, for which she had received some NHS psychological therapy, and in respect of which a change of therapy was planned. It noted that she was not keen to receive medication for her anxiety. The report then concluded as follows [715]: “I think it more likely than not that the planned further counselling will be of benefit to her overall mental well-being but I do not think it likely that it will materially affect her perspective with regard to the risk of Covid in the workplace. At present she will be keen to make return to work once the threat of Covid has ended but not until that time. I do not think any medical or psychological interventions are likely to change her perspective in that regard.”

[53]Ms Nelson spoke to the Claimant on 18 March 2021. She told her that unpaid leave was no longer an option, and that she had exhausted her holiday entitlement. She therefore told the Claimant that she would need to either return to work, or go to her GP to be signed off. The contemporaneous notes taken by the Claimant did not suggest that Ms Nelson mentioned resignation in that call.

[54]On 23 March 2021, the Claimant sent Ms Nelson and Ms Gordon a lengthy email [199]. The email set out her summary of the various telephone conversations she had had with Ms Nelson.

[55]Ms Nelsons’ evidence was that she spoke to People Point and her area manager, and it was agreed that the Claimant’s email would be treated as a grievance. Her evidence was that she did not agree with the contents of the email, but did not reply to correct it because it was not appropriate for her to do so when Claimant had an outstanding grievance against her. We accept her evidence in that regard.

[56]The Claimant had, in parallel, been in email contact with People Point. On 19 March 2021, Bonnie Eyre of People Point confirmed to her that People Point did not read Occupational Health reports, although the manager may provide them with a high-level summary [191]. She confirmed that decisions are made by managers, not by People Point, although with the benefit of advice from People Point.

[57]Ms Eyre then emailed two colleagues, saying this: “I will let you know what response I get from her but its clear this case may need a sensitive approach locally and we definitely need to get the managers to own their decisions and not use PPs name in vain” [197]

[58]The Claimant’s understanding of the Ms Eyre’s emails appeared to be that Ms Nelson had lied to her when she referred to having taken advice from People Point, and about having discussed the Occupational Health advice with People Point. That is, again not how we read the emails. The email from Ms Eyre to the Claimant indicated that the manger would share the information they have with People Point in order to take advice. Selfevidently, People Point could not sensibly advise without having at least a summary of the Occupational Health advice. The suggestion that People Point were not decision makers is not, in our judgment, inconsistent with Ms Nelson suggesting that she had sought advice from People Point. Even on the Claimant’s own evidence, she did not suggest that she was told that People Point would be the ultimate decision-maker on anything to do with her employment. At most, her evidence was that Ms Nelson suggested that the list options available to her (provided by Ms Nelson) came from People Point. Whether or not that was right, it was certainly not the same thing as People Point being the decision-maker. Nor was it inconsistent with the status of People Point as an advisory function.

[59]On 22 March 2021 Bonny Eyre told the Claimant that she could raise the Claimant’s concerns to be looked into by an appropriate and independent manager [214]. The Claimant agreed to this [213].

[60]Jose Gali-Reinoso was appointed to hear the Claimant’s grievance. He was provided with copies of the Claimant’s various emails.

[61]On 24 March 2021, he invited the Claimant to a grievance meeting via MS Teams [212]. The meeting took place on 26 March 2021. The Claimant was given the opportunity to be accompanied, although she did not exercise that right. Notes of the meeting were taken [218]

[62]The Claimant confirmed to Mr Gali-Reinoso in the meeting that there were three areas to her grievance: 62.1. The way her absence had been handled, particularly by Ms Nelson and Ms Gordon; 62.2. The way the Colleague Health report was handled; 62.3. The fact that the Claimant was feeling scared about returning to work.

[63]The Claimant agreed that she would also forward all relevant correspondence that she had to Mr Gali-Reinoso.

[64]Mr Gali-Reinoso took advice from People Point about the operation of the Unpaid Leave policy and the Career Break policy. On 1 April 2021, he emailed the Claimant to explain that she had already had the maximum amount of what he described as “Permission Unpaid leave”, so if she was not well enough to return to work she would need to obtain a fit note to cover any absence from 4 April 2021 onwards. He also referred her to the Respondent’s Employee Assistance Programme [250].

[65]Mr Gali-Reinoso interviewed Evette Gordon on 3 April 2021 [278] and Gemma Nelson on 6 April 2021 [282]. He reviewed all of the documents he had been sent. Having done that, he offered to meet the Claimant to discuss his investigation with her. The Claimant indicated that she would prefer to simply receive the outcome in writing [255].

[66]In 7 April 2021, Mr Gali-Reinoso emailed the Claimant his outcome letter [257]. He concluded as follows: 66.1. In respect of the first point, the grievance was upheld in that the communication with the Claimant could have been better, and having multiple points of contact was not ideal. 66.2. The second point, regarding sharing her Occupational Health report with Gemma Nelson, was not upheld as Ms Nelson had not seen the Occupational Health report, and the details the Claimant had shared with Ms Gordon about her situation had not been shared with Ms Nelson. 66.3. The third point was not upheld, in that the Claimant had had 12 weeks of “Permission Unpaid” leave, and the offer of a career break, as well as a referral to Occupational Health.

[67]Mr Gali-Reinoso reiterated to the Claimant that if she was not fit to work she would ned to obtain fit notes covering the period from 4 April 2021. He concluded his letter by informing the Claimant of her right to appeal his decision.

[68]The Claimant did appeal. Her appeal was heard by Zainab Abdullah, Area Manager for Romford and Ilford. We did not hear evidence from Ms Abdullah, who is currently on maternity leave.

[69]The Claimant was invited to a meeting with Ms Abdullah, but indicated that she would prefer the appeal to be conducted on paper [295]. Ms Abdullah interviewed Ms Nelson and Ms Gordon [303, 305]. She sent her outcome letter to the Claimant on 12 May 2021 [308]. Ms Abdullah concluded as follows: 69.1. PeoplePoint did not advise Ms Nelson that resignation was an option that should be presented to the Claimant. 69.2. Offering resignation as an option was inappropriate, and she had fed that back to Ms Nelson (Ms Abdullah noted that she did not believe that Ms Nelson asked the Claimant to resign, and that offering it as an option was a genuine error in judgment). 69.3. The Colleague Health referral did not contain any of the information that the Claimant had shared with Ms Gordon, and the report was not seen by Ms Nelson. 69.4. Regarding the Claimant’s position in terms of her return to work, the correct process had been followed and adjustment were offered to support a return to work.

[70]Ms Abdulla recommended that a facilitated meeting be arranged between the Claimant and Ms Nelson. Regarding the Claimant’s return to work, she said this: “As you have not provided a GP certificate you will required to return to work on Sunday 23rd May 2021. If you fail to attend work or fail to provide a medical certificate, then I need to inform you it is likely you will be invited to a formal meeting to discuss your unauthorised absence.”

[71]Ms Abdullah concluded her email by noting that the process was concluded, and there was no further right of appeal.

[72]On 23 May 2021, the Claimant emailed Bonny Ayre [311]. The email was lengthy (12 pages) Within that email, she sought to revisit her grievance. Ms Ayre responded indicating that the grievance process was complete and there was no additional avenue to raise the same concerns [325].

[73]In the interim, the Claimant did not return to work on 23 May 2021. Nor did she submit a fit note. On 24 May 2021, Ms Gordon wrote to her to inform her that her absence was unauthorised. The letter was sent by recorded delivery and first class post, to the address the Respondent held on file for the Claimant. The recorded delivery letter was returned to the Respondent as undelivered on 2 June 2021. The reason given was that the Claimant no longer lived at that address. We accept that the Claimant did not receive either copy of the letter of 24 May 2021. Ms Gordon also attempted, without success, to telephone the Claimant.

[74]In the interim, the Claimant emailed Colleague Health asking for a further Occupational Health appointment. She was told that she would need to be referred by her manger. She emailed Colleague Health again on 27 May 2021 explaining why she wanted a further referral. Within that email, she said this [330]: “To be honest with you, currently I am not able to ask my manager for referral. Truth of the matter is that the manager does not have best interest for me and they are working towards trying to dismiss me as they have already suggested something indirectly like this before and although they have the report and which states my health issue they have already started putting me on unauthorised absence and telling independent investigators that there is nothing in my report. This is really concerning and causing further distress to my existing health situation already.”

[75]Also on 27 May 2021, the Claimant emailed Bonnie Eyre. She indicated that she did not consider that the grievance process had addressed her actual concerns [332].

[76]On 27 May 2021, Ms Eyre responded [334]. She told the Claimant that a member of her team would check that all of the documents submitted by the Claimant had been received by the manager holding the appeal. Regarding the Claimant’s ongoing absence, she said this: “In your email below, you refer to your current absence from work. I cannot comment on this as this matter will be being managed by your line manager. You should continue to engage with your line manager on this topic. I have however provided a copy of the absence policy (this is also available on Boots live) and encourage you to read and follow this, especially with regard to providing documentation for any ongoing absence such as Drs notes.”

[77]The Claimant did not attend work on the following Sunday (30 May 2021). She had, again, not tendered a fit note.

[78]On 31 May 2021, Ms Gordon wrote to the Claimant again, by recorded delivery. She used the same address as for the previous letter. She indicated that the Claimant’s continuing unauthorised absence was viewed as gross misconduct, and that the Claimant would be invited to attend a disciplinary hearing. She referred to the Claimant as having been absent from work since 31 October 2021. The allegations to be discussed were set out as follows [342]: “• your continued unauthorised absence• failure to follow the correct absence reporting procedure

• failure to follow a reasonable management instruction to keep the company informed of the reason(s) for your continued absence.”

[79]This letter was, again, not received by the Claimant. Ms Gordon would not have been aware when she sent the second letter that the first letter had not been received by the Claimant, because the first letter was not recorded as undelivered until 2 June 2021.

[80]Saba Pillai was appointed to hear the Claimant’s disciplinary. He was, at the time, manager of the Putney store, although he had only been in that role for around 2 months, having previously been a manager at Heathrow.

[81]On 1 June 2021, the Claimant sent Ms Gordon a lengthy email [344]. The majority of the email covered matters already dealt with in the Claimant’s grievance. She asked to be referred to Occupational Health for further advice. She asked why she was recorded as being on unauthorised absence.

[82]On 3 June 2021, Ms Gordon replied to the Claimant’s email. She indicated that she had read it, and that the Claimant could raise her concerns with Mr Pillai at the disciplinary meeting on 4 June 2021 [370].

[83]The Claimant emailed Mr Pillai to indicate that she was unable to attend the meeting on 4 June. She also indicated that she did not know the purpose of the meeting (unsurprisingly, as she had not received either of Ms Gordon’s letters) [371].

[84]Mr Pillai re-arranged the disciplinary meeting for 8 June 2021. He sent the invitation letter to the Claimant by email [378]. He also noted that there had been an error in a date in the letters sent by Ms Gordon, in that it referred to the Claimant having been absent since 30 October 2021 (when it should have said 2020).

[85]The Claimant emailed Mr Pillai on 8 June 2021 [383]. She asked what he meant about the date error (again, unsurprisingly given that she had not seen Ms Gordon’s letters). She indicated that she felt that the disciplinary action was retaliatory, after her grievance. The Claimant set out in some detail why she disagreed with the allegations set out in the invitation letter. She also reiterated the substance of her grievance.

[86]Mr Pillai’s evidence to the Tribunal was that he did not understand the Claimant’s point regarding the October date because he didn’t know that she had not received the previous letters. That only became apparent to him during the course of the Tribunal hearing.

[87]On 8 June 2021, Bonnie Eyre emailed the Claimant. She indicated that Mr Pillai would review the information the Claimant had provided to ensure that all the points she had raised had been considered as part of the grievance process [399]. In a further email on 9 June, she explained that Mr Pillai would not be rehearing the grievance or giving an extra appeal. Rather, he was checking to ensure that all parts of the grievance had been looked at.

[88]The Claimant provided Mr Pillai with fit notes covering the period from 1 May to 1 July 2021. On 9 June 2021, Mr Pillai emailed the Claimant explaining that her absence was no longer unauthorised, and that the disciplinary meeting was therefore cancelled. He explained that the Claimant would receive sick pay in line with the policy. He also explained that he would be the Claimant’s point of contact during her absence. He explained that he would arrange an absence support meeting to discuss a referral to Colleague Health [413].

[89]On 16 June 2021, Mr Pillai emailed the Claimant asking to meet her at a convenient place. He also asked for consent to view the existing Occupational Health report [418].

[90]The Claimant did not reply to the email of 16 June 2021. On 9 July 2021, Mr Pillai emailed the Claimant again [423]. He explained that he had reviewed all of the information provided as part of the grievance, and considered that she had been given an outcome to the points raised, so the matter was concluded. He indicated that an Absence Review Meeting would take place on 15 July 2021. He again asked for permission to view the Claimant’s Occupational Health report, and offered to arrange another appointment if there had been a change in her health condition.

[91]The Claimant emailed Mr Pillai on 11 July 2021 with a copy of her latest fit note (which signed her off until 16 August 2021). She indicated that she would reply to his email “shortly”.

[92]On 23 August 2021, the Claimant emailed Mr Pillai (she had apparently tried to send the same email on 14 July 2021, without success) [435]. She indicated that she had still not had a response to the issue about the dates (that is, Mr Pillai’s reference to 31 October 2020 versus 31 October 2021 in his email of 8 June 2021). She indicated that she was not well enough to attend a meeting.

[93]On 3 September 2021, Mr Pillai responded [443]. He indicated that the grievance was completed. He also reiterated the position regarding the disciplinary invitation; namely, that the hearing had been cancelled because the Claimant’s absence was no longer unauthorised. He explained that since the Claimant was currently too unwell to attend an absence support meeting, he would invite her to another meeting in 4 weeks.

[94]On 30 September 2021, Mr Pillai emailed the Claimant a letter inviting her to an absence support meeting, which was to take place on 6 October 2021 at the Putney store [462]. His letter included a summary of the long term absence process.

[95]On 6 October 2021, the Claimant sent Mr Pillai a lengthy email (it ran to some seven and a half pages) [465]. She explained that her health had not improved. She went over a number of matters raised in previous emails. She noted that she still had not had an explanation regarding the query about the reference to 31 October 2021 in Mr Pillai’s first email. She continued to alleged wrongdoing by the Respondent’s managers.

[96]On 10 November 2021, Mr Pillai responded to the Claimant [477]. He explained that the purpose of the meetings was to discuss any support or adjustments to facilitate a return to work. He explained that the meetings were arranged in line with the Respondent’s policy, but that there was no pressure for her to attend them if she was still too unwell. He explained that he would need to contact the Claimant after 26 weeks of absence, but that if she was unable to attend due to ill health or unwilling to attend the meeting then they may have to make a decision in her absence. He explained that adjustments could be made to support her attending, such as holding the meeting by MS Teams or telephone, providing additional breaks, or allowing her to be accompanied by a family member. He also explained that the Claimant could provide written representations instead of attending. He asked if the Claimant would consent to an assessment by Occupational Health.

[97]The Claimant emailed Mr Pillai on 18 November 2021 [480]. She questioned Mr Pillai’s independence from her branch management team. She referred to there being “an incredible amount of dishonesty”. She indicated that she did not consider that her questions had been answered, and referred specifically to Mr Pillai avoiding answering the reason for actioning her disciplinary “wrongly”. She referred again to what she considered to be issues with her grievance. She then copied and pasted her email of 6 October 2021.

[98]Mr Pillai decided, along with HR, that as the Claimant was questioning his independence another manager should take over the process of managing her sickness absence. He wrote the Claimant to explain that. He explained that she would be invited to a formal capability review meeting with the new manager. He reiterated the adjustments that could be made to that meeting [498].

[99]The Claimant replied to Mr Pillai to ask for the name and details of his area manager [503]. Mr Pillai did not respond immediately as he was away from work due to a double bereavement. After the Claimant chased, he provided a response on 17 December 2021 [504].

[100]Steve White, manager of the Balham High Street store, was appointed to take over the Claimant’s absence management. He wrote to Claimant on 17 December 2021 to invite her to a meeting on 22 December 2021 [500]. Within that letter, he reiterated that the meeting could take place via MS Teams. He also offered to re-refer the Claimant to Colleague Health. He explained that the Claimant had a right to be accompanied at the meeting. He also said this: “Please be aware that if, following this review, I decide that it is not likely that you will be able to return to work within a reasonable timeframe, a potential outcome of this meeting is dismissal with notice on the grounds of capability.”

[101]On 17 December 2021, the Claimant emailed Mr White. She described his email as “very distressing”. [505]. Her email was lengthy, and was addressed in strong terms. She referred to “continuous dishonesty” from the Respondent’s management team, and accused managers of misconduct towards her. She described her situation as an “injustice”. She complained that Mr Pillai had not dealt with her concerns. She asked for the datils of Mr White’s area manager.

[102]On the same day, the Claimant wrote again to Mr Pillai. She described it as “unfair and wrong” that she was having to explain her situation to someone different [508].

[103]On 22 December 2021, she wrote to Mr Pillai again. The subject line of the email, all in block capitals, was “PLEASE READ, CAPABILITY MEETING WRITTEN REPRESENTATION, REQUEST FOR HOME VISIT, REQUEST TO LOOK AT ALL PREVIOUS CORRESPONDENCE STATING MY CONCERNS AND QUESTIONS WHICH HAVE BEEN AVOIDED AND IGNORED AND LEFT UNRESOLVED. FALSELY CLAIMING TO ACT AS INDEP…” [512]. The email was again a lengthy one. She referred to being discriminated against, and complained again about Mr White being appointed in place of Mr Pillai. She alleged that Ms Gordon had “put [Mr Pillai] up to this” in the hope that he would dismiss the Claimant.

[104]Under the heading “Capability meeting” she explained that she would not write out again everything she had already written to Mr Pillai. She referred to the anxiety it was causing her. She referred to her anxiety, depression, agoraphobia and panic attacks. She explained that she was not well enough to attend a meeting, even by MS Teams or telephone, and that the most she could do was communicate in writing. She indicated that she was unable to come to work as she was very ill, but that she hoped to return to work in the near future. She said that if it was necessary to have a meeting in person, she was willing for Mr Pillai to attend her home with the support of a family member. She then went on to say “I would like to request a home visit”. Later on in the email she again said that she would like to request a home visit.

[105]Also on 22 December 2021, the Claimant emailed Mr White [517]. She said that she did not consider Mr White to be independent. She explained that she would not be able to attend the meeting in person due to her ill health [517].

[106]On 23 December 2021, Mr White wrote to the Claimant again [520]. He noted that the Claimant had “chosen not to attending the meeting” [sic]. He assured Claimant that he was impartial. He invited her to a further meeting on 6 January 2022.

[107]The Claimant replied on the same day. She said that it was incorrect that she had “chosen” not to attend, as she had been unable to attend due to her mental health [523]. A little later the same day, she emailed again saying that she had requested a home visit.

[108]Mr White emailed the Claimant on 31 December 2021 [527]. He indicated that owing the risks associated with the COVID19 pandemic he would offer to hold the meting either by telephone or MS Teams. He also asked for permission to re-refer the Claimant to Colleague Health. He explained that, if the Claimant was unable to attend the meeting, he would be grateful if she could send the written submissions she had referred to, highlighting the areas that she wished him to consider as part of the Capability Review Meeting.

[109]On 6 Jan 2022, the Claimant wrote to Mr White again [529]. She accused Mr White of not responding to her emails (including regarding the home visit). She explained that she had already set out why she was not able to return to work. She stressed again that her mental ill health was preventing her from being able to work. She did not mention the possibility of a Colleague Health referral. Towards the end of the email, she said this: ”Please stop threatening me with dismissal regarding a matter which cannot be helped”

[110]On 19 January 2022, Mr White wrote to the Claimant again to invite her to a further formal Capability Review Meeting on 25 January 2021 [534]. He indicated again that he wanted to refer the Claimant to Occupational Health, and asked for her consent to do that. Within that letter, he indicated that the Occupational Health referral would establish what adjustments could be made to the meeting, which may include holding the meeting remotely or allowing the Claimant to provide written submissions,. The letter said that the meeting would discuss: 110.1. The Claimant’s absence since 1 May 2021; 110.2. The options that had been explored to enable her to return to work; 110.3. Any other options/adjustments that could enable her to return to work; and 110.4. The likelihood of her being able to return to work within a reasonable timeframe.

[111]The letter then went on to say that the meeting could be adjusted by being held through MS Teams, or that the Claimant could make written submissions (which he asked be sent to him by 21 January 2022). The letter explained that if the Claimant did not attend, Mr White may make a decision in her absence, and that one potential outcome was her dismissal with notice on the grounds of capability.

[112]The Claimant did not make contact with Mr White, and did not attend the meeting. Mr White then wrote to the Claimant again on 1 February 2022, inviting her to a meeting on 8 February 2022 [543]. The contents of the letter was much the same as his previous letter.

[113]On 8 Feb 2021, the Claimant emailed Mr White [559]. She said that she would not be attending the meeting due to her mental health. She described the process as a “waste of my time and energy”. She described it as “insensitive” to keep inviting her to attend meetings. She indicated that she would not give consent for Mr White to refer her to Occupational Health. She then said this: “I am willing to have referral to occupational health if my own store manager wishes to make referral or anyone else senior that can investigate this matter that has now gone out of hand.”

[114]On 8 February 2022, the Claimant emailed Mr Pillai. She indicated that he had not responded to her emails, and she requested a home visit [565].

[115]On 5 March 2022, Mr White emailed the Claimant. He gave her what he described as a “final opportunity” to discuss her continued absence either in person, remotely or via written submissions. He attached a letter inviting her to a meeting on 10 March 2022. The letter was in broadly the same terms as the previous letters [570].

[116]The Claimant neither responded nor attended the meeting.

[117]Mr White proceeded with the meeting in the Claimant’s absence. He wrote to her on 17 March 2022 to confirm the outcome, which was that she would be dismissed on notice. He noted that a return to work in the immediate or near future was not likely. He indicated that the Claimant could appeal his decision, by writing to Smitesh Patel;.

[118]Mr Patel is the manager of the Liberty Romford store. There is a hierarchy of store managers within the Respondent. Mr Patel is a more senior store manager than Mr White.

[119]The Claimant did write to Mr Patel to appeal her dismissal [601]. Mr Patel wrote to the Claimant to arrange a call to discuss the appeal meeting

[120]On 6 April 2021, the Claimant emailed Mr Patel. She indicated that she wanted her appeal to be dealt with in writing [618].

[121]Mr Patel agreed to this [620]. Then on 11 April 2022, the Claimant emailed Mr Patel explaining that she would like a home visit from him [621].

[122]Mr Patel emailed the Claimant on 29 April 2022 [640]. He set out a number of questions for the Claimant regarding her medical situation and her appeal. He did not respond directly to the request for a home visit. His evidence was that he did not think that a meeting was a good idea because of the way her mental health appeared to have affected her communication, and also that he was concerned about COVID19 (having had to shield for two periods during the pandemic).

[123]The Claimant emailed Mr Patel on 6 May 2022 responding to his questions in some detail (her email was 14 pages long). She indicated that she had every intention to return to work, but was unable to put a timescale on when she may be able to do so.

[124]Mr Patel considered the Claimant’s grounds of appeal, as well as the correspondence he had been forwarded by Mr White. He wrote to the Claimant on 27 May 2022 giving the outcome of her appeal [685]. His decision was to uphold the Claimant’s dismissal. He explained that: 124.1. The decision to terminate Claimant’s employment was taken in accordance with the Respondent’s long term absence policy. 124.2. The sickness absence had commenced in May 2021, and the Claimant had not returned to work since then. At the point when her dismissal was considered her absence had lasted for 44 weeks (which was more than the 26 weeks in the policy) 124.3. The Claimant had declined a further OH assessment. 124.4. The Claimant had been unable to meet with Mr Pillai or Mr White to discuss her absence. 124.5. There was no evidence to suggest that the dismissal was linked to her grievance. Medical evidence

[125]We had in evidence before us medical evidence, including the following: 125.1. An undated letter “to whom it may concern” from a Dr Rebecca Littlewood, which said this [722]: Mrs Munim has had numerous appointments with us regarding her anxiety and depression since 2020. This was exacerbated by problems with neighbours and her family being the victim of hate crime, resulting in a police investigation. We have documentation from our consultations with her that this resulted in significant stress, affected her work, caused her to develop agoraphobia, and had negative Impact on daily functioning including eating and sleeping. She had significant anxiety and experienced panic attacks.” 125.2. A letter dated 21 January 2022 from Lambeth Talking Therapies, which referred to an assessment on 4 November 2021. The letter noted that the Claimant reported ongoing difficulties with Depression and Anxiety since 2020. It noted that the Claimant reported feeling worried all the time, struggling to sleep, finding it hard to enjoy activities or focus on things day to day [723]. At the point that the letter was written, it noted that the Claimant was 5 sessions into an 8 session course of Cognitive Behavioural Therapy. 125.3. An End of Treatment letter dated 8 April 2021, following a course of counselling with reported symptoms including anxiety and stress. The report noted that the Claimant was still anxious and stressed. [730] 125.4. A letter dated 12 January 2021 noting that the Claimant was assessed on 25 November 2020 for Anxiety. She was assessed as scoring for 13 in the PHQ-9 scale for depression and 20 on the GAD7 score for anxiety. The letter did not indicate what those scores meant in relative terms [733]. 125.5. A letter from the Claimant’s GP indicating that she had been diagnosed with mixed anxiety and depressive disorder [734]. The letter was undated but referred to the Claimant having been issued with fit notes.

[126]The Claimant’s evidence in her impact statement was that she had been receiving therapy treatment since around August 2020 for anxiety and depression. Her evidence was that: 126.1. Simple activities such as getting out of bed, getting dressed, eating, washing and brushing her teeth were difficult. 126.2. Engaging socially was exhausting due to her symptoms. She required support from her husband to encourage her even to eat, as she lost her appetite and was unable to sleep. 126.3. She would feel nauseous and dizzy due to anxiety. 126.4. She suffered from fatigue and reduced concentration and attention, disturbed sleep, and lack of appetite.

[127]The claimant notified ACAS under the early conciliation process of a potential claim on 8 June 2022 and the ACAS Early Conciliation Certificate was issued on 19 July 2022. The claim was presented on 15 August 2022. Law

[128]Section 39(2) of the Equality Act 2010 provides that an employer must not discriminate against an employee: 128.1. In the terms of employment; 128.2. In the provision of opportunities for promotion, training, or other benefits; 128.3. By dismissing the employee; 128.4. By subjecting the employee to any other detriment.

[129]In order to be subjected to a detriment, an employee must reasonably understand that they had been disadvantaged. An unjustified sense of grievance will not constitute a detriment (Shamoon v Royal Ulster Constabulary

[2003] UKHL 11

[130]The starting point is s.6 of the Equality Act 2010, which provides as follows: “(1) A person (P) has a disability if—a. P has a physical or mental impairment, and

b. the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. (2) A reference to a disabled person is a reference to a person who has a disability. (3) In relation to the protected characteristic of disability – a. A reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; b. A reference to persons who share a protected characteristic is a reference to persons who have the same (4) This Act …applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly … a. a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability… b. a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability (5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1).

[131]The Government has issued guidance under section 6(5) of the EqA 2010, entitled ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (2011) (“the Guidance”). The Guidance does not impose any legal obligations in and of itself, but the tribunal must take account of it where it is considered to be relevant.

[132]The Equality and Human Rights Commission (EHRC) has published a Code of Practice on Employment (2015) (“the Code”). The Code provides guidance on the meaning of ‘disability’ for the purposes of the EqA 2010. It does not impose legal obligations but must be taken into account where it appears relevant to any questions arising in proceedings.

[133]In considering the question of whether a Claimant is disabled, the Tribunal must apply the four-stage approach approved by the Court of Appeal in Sullivan v Bury Street Capital Limited

[2021] EWCA Civ 1694

(while remaining mindful of the need to look at the overall picture): a) Was there an impairment? (the ‘impairment condition’); b) What were its adverse effects [on normal day-to-day activities]? (the ‘adverse effect condition’); c) Were they more than minor or trivial? (the ‘substantial condition’); d) Was there a real possibility that they would continue for more than 12 months? (the ‘long-term condition’).

[134]It is usually not necessary to consider the “impairment” condition in detail (J v DLA Piper UK LLP). The same case provides that Tribunals should be aware of the distinction between clinical depression and a reaction to adverse circumstances.

[135]There is no definition of ‘mental impairment’ in the EqA 2010 but Appendix 1 of the Code provides that the term is intended to cover a wide range of impairments relating to mental functioning, including what are often known as learning disabilities.

[136]“Mental impairment” should be given its “natural and ordinary meaning” (McNicol v Balfour Beatty Rail Maintenance Ltd

[2002] EWCA Civ 1074

[137]Section 212 of the EqA 2010 defines “substantial” as being more than minor or trivial.

[138]Paragraph 5 of Schedule 1 to the EqA 2010 provides as follows: “(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if:(a) measures are being taken to correct it, and

(b) but for that, it would be likely to have that effect. (2) ‘Measures’ includes, in particular, medical treatment and the use of a prosthesis or other aid.”

[139]In considering whether an impairment has a substantial adverse effect on the ability to carry out normal day-to-day activities, it is necessary to take account not only evidence that person is performing a particular activity less well, but also of evidence that a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment; or because of a loss of energy and motivation (Appendix 1 to the Code).

[140]Schedule 1, para. 2 of the EqA 2010 defines “long-term” as follows:(1) The effect of an impairment is long-term if - (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.

(2) If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

[141]In that context, “likely” has been held to mean it is a “real possibility” and “could well happen” rather than something that is probable or more likely than not (SCA Packaging Ltd v Boyle

[2009] ICR 1056

[142]The question of how long an impairment is likely to last must be determined at the date of the alleged discriminatory act, not at the date of the Tribunal hearing (McDougall v Richmond Adult Community College

[2008] ICR 431

[143]The burden of showing that she is disabled within the meaning of the Act rests on the Claimant.

[144]The definition of direct discrimination is contained in section 13(1) of the Equality Act 2010: “(1) 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.”

[145]The comparison may be to an actual or a hypothetical comparator. In either case, there must be no material difference between the circumstances relating to each case (s.23(1)). That is, the comparator must be in the same position in all material respects save only that he or she is not a member of the protected class (Shamoon v Chief Constable of the RUC

[2003] ICR 337

[146]In considering whether a claimant was treated less favourably because of a protected characteristic, the tribunal generally have to look at the “mental processes” of the alleged discriminator (Nagarajan v London Regional Transport

[1999] IRLR 572

). The protected characteristic need not be the only reason for the less favourable treatment. However the decision in question must be significantly (that is, more than trivially) influence by the protected characteristic.

[147]The definition of discrimination arising from disability is set out in s.15 of the Equality Act 2010: “(1) A person(a) (A) discriminates against a disabled person

(b) (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”

[148]“Unfavourable” is not defined in the statute. The EHRC Statutory Code of Practice provides that it means that the disabled person “must have been put at a disadvantage”.

[149]Guidance for Tribunals on how to approach the test in section 15 was set out by the EAT in Pnaiser v NHS England

[2016] IRLR 170

[150]The duty to make reasonable adjustments is set out in section 20 of the Equality Act 2010: 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…”

[151]Paragraph 8 of schedule 20 to the EqA 2010 provides that an employer is not subject to the duty to make reasonable adjustments if he or she does not know, and could not be reasonably be expected to know that the claimant: 151.1. Has a disability; and 151.2. Is likely to be placed at a disadvantage by the employer’s provision, criterion or practice, the physical features of the workplace or a failure to provide an auxiliary aid.

[152]The Tribunal must therefore ask itself two questions: 152.1. Did the employer both know that the employee was disabled and that the disability was liable to put the employee at a substantial disadvantage? 152.2. If not, ought the employer to have known both of those thing?

[153]If the answer to both questions is “no”, the duty to make reasonable adjustments is not triggered.

[154]The EHRC Code provides that employers must “do all they can reasonably be expected to do” to find out whether an employee has a disability.

[155]Section 94 of the Employment Rights Act 1996 confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111. The employee must show that they were dismissed by the respondent under section 95.

[156]Section 98 of the ERA 1996 deals with the fairness of dismissals. There are two stages within section 98. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2). Capability is a potentially fair reason for dismissal.

[157]Section 98(4) then deals with fairness generally and provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and shall be determined in accordance with equity and the substantial merits of the case.

[158]In considering dismissal for long term ill health, the Tribunal must consider whether the employer can be expected to wait any longer for the employee to return (BS v Dundee City Council

[2014] IRLR 131

)

[159]The employer must consult with the employee about the proposed dismissal, and discover the true medical position (East Lindsey District Council v Daubney

[1977] ICR 566

[160]The Burchell test is applicable to dismissals for long term ill health – the employer must: 160.1. Genuinely believe that the employee is incapable of returning to their post; 160.2. Have carried out reasonable investigation into the position; and 160.3. Have reasonable grounds for that belief; (DB Schenker Rail (UK) Ltd v Doolan EAT 0053/09)

[161]It is not for the Tribunal to substitute its own view on whether to dismiss; rather, the question for the Tribunal is whether dismissal was in the range of responses open to a reasonable employer.

Conclusions

[162]We deal first with the question of whether the Claimant had a disability for the purposes of section 6 of the EqA 2010 at the relevant times. The relevant time is the period from October 2020 until the determination of the Claimant’s appeal against dismissal. October 2020 is the date of the first allegation of disability discrimination, as the first two allegations on the list of issues were not relied upon as allegations of direct disability discrimination.

[163]Using the four stages set out in Sullivan: Was there an impairment? (the ‘impairment condition’);

[164]We consider that there was an impairment at the relevant times. The Claimant’s condition of anxiety and depression was medical recognised and diagnosed. The fact that a condition is triggered or exacerbated by adverse life events does not mean that it is not capable of being impairment. If that were the case, a condition such as post-traumatic stress disorder would not be caught by section 6; which would plainly be an absurd result.

[165]In this case, the Claimant’s condition was clearly triggered by circumstances in her personal life. But equally, it was much more than simply a reaction to those circumstances. It was a medically diagnosed condition, lasting several years. On the evidence before us, the Claimant had been suffering from it to the extent that she required and was receiving therapy since August 2020. What were its adverse effects [on normal day-to-day activities]? (the ‘adverse effect condition’);

[166]The Claimant in her evidence referred to: 166.1. Insomnia; 166.2. Loss of appetite; 166.3. Agoraphobia; 166.4. Difficulties in social environments; 166.5. Fatigue and reduced concentration; and 166.6. Difficulties with nausea, panic attacks and bowel control (Which in turn affected her ability to socialise and leave the house). She was also unable to work from March 2020 onwards.

[167]Each of these things are normal day-today activities. We accept the Claimant’s evidence regarding the adverse effects her condition had on her. It was borne out by both the (albeit limited) medical evidence before us, and also by the contemporaneous evidence in emails she sent to managers throughout. Were they more than minor or trivial? (the ‘substantial condition’);

[168]We have no difficulty in concluding that the effects were more than minor or trivial. They significantly impacted her ability to engage in ordinary life. Was there a real possibility that they would continue for more than 12 months? (the ‘long-term condition’).

[169]As at October 2020: 169.1. The Claimant had been suffering from the effects of anxiety since early 2020. 169.2. She referred in her evidence to having started therapy in August 2020. 169.3. As of October 2020, when she first spoke to Ms Gordon, she had no idea when she may be fit enough to return to work. She was clearly not optimistic that she would be able to make a swift return, because she was asking about a career break. The Respondent’s career break policy provides for career breaks of a year or two years. That gives an insight, in our judgment, into the Claimant’s view about how her condition may progress from that point onwards.

[170]Taking all of that into account, we conclude that there is a real possibility as at October 2020 that the impairment would last for 12 months.

[171]In the event, the Claimant’s condition did not improve over the remainder of her employment.

[172]We therefore conclude that the Claimant did have a disability within the meaning of the EqA 2010 at all relevant times.

[173]Allegations (c) to (h) are relied upon by the Claimant as both direct discrimination and discrimination arising from disability. We have dealt with each factual allegation in turn, considering it against each of the heads of discrimination which it is claimed to be. (a) failing to promote her to dispensary assistant

[174]The Claimant indicated in her evidence that this was relied upon as a complaint of direct age or race discrimination only.

[175]The Claimant was not promoted to dispensary assistant. It was not suggested that she applied for any promoted position.

[176]In respect of the three comparators she relied upon; 176.1. We have accepted that Elzabeth Tye was never promoted. So she was not treated any more favourably than the Claimant. 176.2. We have accepted also that Bintou Fall was not promoted. So again, she was not treated any more favourably than the Claimant. In any event, we would have found that she was not in the same position in all material respects as the Claimant, because she was studying to be a Pharmacist at University which the Claimant was not. 176.3. Sienna Roberts was promoted. However she had undertaken a Pharmacy Adviser course, which the Claimant had not. She was eligible to undertake that course because she worked more than 15 hours per week, which the Claimant did not at the relevant time. We therefore find that she is not an apt comparator for the Claimant, because she was not in materially the same circumstances.

[177]It follows that the Claimant was not treated less favourable than any of the three comparators she relies upon. The Claimant did not apply for any promoted position, and she did not qualify for the Pharmacy Adviser course because of her hours of work. We cannot see anything to suggest that a hypothetical comparator in the same circumstances as the Claimant would have been treated any differently to the Claimant. The allegation therefore fails. (b) Mrs Gordon regularly scrutinising the Claimant on CCTV

[178]We have found as fact that this did not happen. It follows that the allegation fails. (c) Ms Gordon and Ms Gemma Nelson suggesting to her that during her sickness absence that• she should resign and

• that they had been told to say this by People Point, the HR centre

[179]We have found as fact that Ms Gordon did not suggested resignation to the Claimant (save in the context of the career break policy, which required the employee to resign in order to take up a career break). Ms Nelson told the Claimant that resignation was one of the options available to her (having liaised with People Point). But we do not consider it could be said that she told the Claimant that she “should” resign, or otherwise encouraged her to resign.

[180]For the avoidance of doubt, we do not consider that it was inherently inappropriate for Ms Nelson, in the context of setting out all of the possible options available to the Claimant, to indicated that resignation was one of those options.

[181]There is in any event nothing to suggest that a colleague who was in materially the same position as the Claimant (in terms of inability to return to work), but who did not but who did not share her protected characteristics (either individually or cumulatively), would have been treated any differently.

[182]It follows that this fails as an allegation of direct discrimination

[183]We have found as fact that neither Ms Gordon nor Ms Nelson told the Claimant that she should resign. And in any event, we do not consider that including resignation in a list of the possible options open to the Claimant could properly be characterised as unfavourable treatment. Resignation was, as a matter of fact, an option open to the Claimant; informing her of that, in the way that it was done by Ms Nelson, was neutral.

[184]It follows that this allegation fails as a complaint of discrimination arising from disability (d) Sharing information inappropriately about her mental health

[185]Ms Gordon did share a summary of the Claimant’s Occupational Health report with Gemma Nelson (although not the whole report). That did entail sharing information about the Claimant’s mental health. Ms Nelson needed that information in order to manage the Claimant. Ms Gordon could not manage the Claimant while she was out of the business. And she was not the Claimant’s line manager.

[186]The information that was shared with Ms Nelson was information that would always have needed to be shared with her, in her capacity as the Claimant’s line manager.

[187]We consider that Ms Gordon ought to have been more up-front with the Claimant about the fact that that Ms Nelson would need to be involved in the Occupational Health process. It was entirely unrealistic for Ms Gordon to suggest to the Claimant that she would be the only one who would see the Claimant’s report. Quite apart from the fact that she was not Claimant’s line manager, and must have known that she may need to shield again as the pandemic continued. The Occupational Health report would selfevidently need to be seen by whoever was managing the Claimant, and that may not always by Ms Gordon.

[188]What we have found Ms Gordon did not share with Ms Nelson was the wider issues the Claimant told her about her situation, and which the Claimant understandably felt were particularly sensitive.

[189]In the circumstances, we do not consider that the information that was shared was inappropriate. It was what was reasonably necessary to manage the Claimant. We can, however, see why the Claimant was upset by it given the unrealistic expectations she had been given by Ms Gordon. But allegation is not made out on the facts, because the information was not shared inappropriately.

[190]In any event, when considering the complaint of direct disability discrimination, what we need to consider is how a colleague who was in materially the same position as the Claimant in terms of her personal situation and the need for Occupational Health advice, but who did not share her protected characteristics, would have been treated. We can see nothing to suggest that such a hypothetical comparator would have been treated any differently to the Claimant.

[191]It follows that this fails as an allegation of direct discrimination.

[192]We have found that the allegation as formulated is not made out on the facts.

[193]In any event, for the reasons we have set out, we conclude that the information that was shared did not constitute objectively unfavourable treatment of the Claimant. It was information that was necessary in order to assist the Respondent to manage her absence in a productive way. Sharing that information could not, we consider, be characterised as objectively unfavourable to the Claimant.

[194]It follows that this allegation fails as a complaint of discrimination arising from disability e) disregarding her grievance

[195]Mr Gali-Reinoso, a senior manager, was appointed hear the Claimant’s grievance. He summarised her grievance into three headings, which he discussed with the Claimant. The Claimant agreed with that categorisation. Mr Gali-Reinoso conducted a reasonably through investigation, addressed the evidence, and provided an outcome letter setting out his conclusion against each part of the Claimant’s grievance. He found her grievance partly upheld.

[196]Ms Abdullah, another senior manager, then heard the Claimant’s appeal against Mr Gali-Reinoso’s conclusion. She dealt with it on paper at the Claimant’s request (although she again interviewed the relevant managers). Once again, she provided a reasonably detailed outcome letter. She upheld the appeal in part.

[197]At both stages, the grievance was dealt in a timely fashion.

[198]Even after that, Mr Pillai conducted a desktop exercise of reviewing the grievance to ensure that all of the points raised by the Claimant had been covered. He concluded that they had been.

[199]We consider that Mr Gali-Reinoso did deal with the substance of Claimant’s grievance. What the Claimant interpreted as her grievance being disregarded, or being “waved off with waffle”, as she put it in the ET1, was simply that Mr Gali-Reinoso had not decided it wholly in her favour.

[200]Taken as a whole, we find that the Claimant’s grievance was not disregarded.

[201]For completeness, there was nothing before us to suggest that a colleague who was in materially the same position as the Claimant in terms of the grievance she had raised, but who did not share her protected characteristics (either individually or cumulatively), would have been treated any differently

[202]It follows that the complaint of direct discrimination fails.

[203]We have found that the allegation was not made out on the facts, in that the Claimant’s grievance was not disregarded.

[204]In any event, we consider that the way that the grievance was handled was not capable of constituting objectively unfavourable treatment of the Claimant. Of course she wanted her grievance to be upheld in full. But that does not mean that failing to uphold it was necessarily unfavourable. The Claimant was given a fair hearing. Her grievance was properly investigated, and she was given a reasoned outcome. She was given the opportunity to appeal, and her appeal was properly considered by another manager. She was once again given a reasoned outcome. And even then, when she continued to complain the process was reviewed by a further manager. The process followed, and the outcome reached, could not be said to be unfavourable.

[205]So this fails as an allegation of discrimination arising from disability. f) pressuring her to have meetings

[206]Taken in the round, we do not consider that the Claimant was pressurised to have meetings. She was given opportunities to discuss her absence, in accordance with Respondents policy. When Mr Pillai was managing her absence, he made it clear to her that she did not have to attend meetings if she was not well enough. We could not read in Mr Pillai’s correspondence any pressure being put on the Claimant to attend meetings.

[207]When Mr White became involved, the tone of some of the correspondence changed somewhat, in that: 207.1. He referring to the Claimant has having “chosen not to attend” the meeting on 22 December 2021. The Claimant’s position, made clear at the time, was that it was not a choice – she was not well enough to attend. 207.2. In the letter of 19 January 2022, he referred to requiring Occupational Health advice to determine whether there should be any adjustment to the process such as allowing the Claimant to make written representations. That appeared to backtrack some way from the position set out by Mr Pillai, which was that the Claimant always had the opportunity to make written submissions. Within the same letter, he did somewhat confusingly go on to say that the Claimant could submit written representations.

[208]Overall though, we do not consider that the tone of Mr White’s correspondence could be characterised as “pressurising” the Claimant to attend. While he did invite her to a number of meetings, that was to give her the opportunity to make representations before he made a decision on her case. Given that the outcome of the process could be the termination of her employment, it was important that she was given that opportunity. And although the letter of 19 January 2022 was somewhat self-contradictory, the Claimant was ultimately always allowed to make written representations, even without specific Occupational Health advice.

[209]Mr Patel agreed to consider written representations rather than meet the Claimant, so once again there was no pressure from him to attend meetings.

[210]We therefore find that the allegation is not made out on the facts.

[211]For completeness, we should say that there was nothing in the evidence before us to suggest that a colleague who was in materially the same position as the Claimant (in terms of her absence), but who did not share her protected characteristics (either individually or cumulatively), would have been treated any differently. Both Mr Pillai and Mr White were following the Respondent’s policy in inviting the Claimant to the meetings they did.

[212]It follows that this fails as an allegation of direct discrimination.

[213]We have found that the allegation is not made out on the facts.

[214]In any event, the way, we consider that the repeated opportunities given to the Claimant to attend a meeting to discuss her health, in circumstances where the termination of her employment was a possibility, were not capable of constituting objectively unfavourable treatment of the Claimant.

[215]So the complaint of discrimination arising from disability fails. g) ignoring her request for a home visit

[216]We find that the Claimant’s request for a home visit was not ignored.

[217]While Mr Pillai did not respond to it, he had made it clear to the Claimant that he was no longer involved in her case. It was not his decision to make; it would not be him who had to attend any meeting with her.

[218]Mr White did engage with the Claimant’s request. He explained that he would offer a meeting by Teams or telephone, but due to COVID would not attend a home visit.

[219]Mr Patel did not expressly respond to the Claimant’s request for a home visit on appeal. But in context, where he had already agreed with the Claimant that the appeal would be carried out in writing, and where he had concerns (which we accept) about attending the Claimant’s house, we do not consider that he could be said to have ignored the request. It would have been better practice for him to have communicated that to her explicitly. But we accept that he did consider the request, and formed a reasoned view on why he would not attend. His decision not to visit the Claimant’s home was also implicit in the fact that he sent the Claimant a list of questions to answer in writing; which she in turn responded to.

[220]It follows that the allegation is not made out on the facts.

[221]For completeness, there was nothing in the evidence before us which suggested that a colleague who was in materially the same position as the Claimant (in terms of her absence and request for a home visit), but who did not share her protected characteristics (either individually or cumulatively), would have been treated any differently.

[222]It follows that this fails as an allegation of direct discrimination.

[223]We have found that the allegation is not made out on the facts.

[224]In any event, we do not consider that refusing the home visit was objectively unfavourable treatment in all of the circumstances. It was not at all clear to us why a home visit would have assisted the Claimant in a way that a meeting on Teams or on the telephone would not have done. There was nothing in either the medical evidence or the Claimant’s contemporaneous correspondence which suggested that that would be the case. There was also a risk of COVID – for both the Claimant and the Respondent’s employees. So we do not consider in the circumstances that it was not objectively unfavourable not to have made a home visit to the Claimant.

[225]So this fails as an allegation of discrimination arising from disability. h) ignoring or not replying to her emails

[226]The Claimant referred in evidence to two specific emails which she said were not replied to: 226.1. The email that she sent to Evette Gordon on 31 May 2021. Ms Gordon did reply to the email, acknowledging receipt of it. She told the Claimant that she could raise the issues with Mr Pillai at the disciplinary meeting. 226.2. The email she sent to Mr Pillai on receipt of the disciplinary invitation. Mr Pillai did email the Claimant following that email to explain that the disciplinary meeting would not be going ahead.

[227]The Claimant also suggested that Mr Pillai and Mr White had not engaged with the substance of her emails on a number of occasions.

[228]In respect of the two specific emails referred to, we have found that Ms Gordon and Mr Pillai did reply to them and did not ignore them (although they did not respond in detail to the substance of the emails).

[229]In respect of the broader point regarding whether the Mr Pillai and Mr White engaged with the substance of her emails, we bear in mind that the Claimant’s emails were lengthy. They tended to revisit the same matters over and over again – for example, continuing to refer back to matters dealt with in her grievance.

[230]Fundamentally, what Claimant appeared to want was for each point she raised in each of her (lengthy) emails to be responded to on a point-bypoint basis, regardless of whether they had already addressed under another process. In that regard, we consider that her expectations of what she might receive from her managers were, unfortunately, unrealistic.

[231]Looked at in the round, we do not consider that it could be said that the Respondent ignored or failed to reply to the Claimant’s emails as a whole. Her emails were (at the very least) acknowledged and considered. We therefore do not consider that the allegation is made out on the facts.

[232]There was in any event nothing in the evidence before us to suggest that a colleague who was in materially the same position as the Claimant (that is, who had sent the same lengthy and repetitious emails to a number of managers over an extended period), but who did not share her protected characteristics (either individually or cumulatively), would have been treated any differently

[233]It follows that this fails as an allegation of direct discrimination.

[234]We have found that the allegation is not made out on the facts.

[235]In any event, we do not consider that the way the Respondent engaged with the Claimant’s emails could be objectively regarded as unfavourable treatment in all of the circumstances. The Claimant’s complaints were taken through a formal grievance process, an appeal, and even a further review after the internal grievance process was complete. After that, she was told (not unreasonably) that those matters had been dealt with). Looked at in the round, we consider that the Respondent took a proportionate approach to her voluminous correspondence. We do not consider that failing to respond on a point-by-point basis to each of her emails could properly be characterised as objectively unfavourable treatment.

[236]So the this fails as an allegation of discrimination arising from disability. i) taking disciplinary action against her inappropriately

[237]The Respondent did not reach the point of taking formal disciplinary action in the sense of applying a disciplinary sanction to the Claimant. She was, of course, invited to a disciplinary hearing. But that occurred in circumstances where: 237.1. The Claimant had been told by Gemma Nelson that she would need to tender a fit notes, return to work, or resign in March 2021. 237.2. She had been told by Mr Gali-Reinoso on 1 April 2021 that she would need to tender a fit note for continued absence. 237.3. That was reiterated in his grievance outcome on 7 April 2021; 237.4. The Claimant was then told the same thing by Ms Abdullah in the grievance appeal outcome on 12 May 2021.

[238]In the circumstances, the Respondent was entitled to treat her failure to attend work on 23 May 2021 and 30 May 2021 as absence without leave. The disciplinary invitation was entirely warranted in the circumstances.

[239]We can see that receiving the letter inviting her to a disciplinary hearing would have been upsetting to the Claimant. But she had been told what she needed to do if she continued to be too unwell to work, and she had not done it.

[240]So the allegation is not made out on the facts.

[241]For completeness, there was nothing in the evidence before us to suggest that a colleague who was in materially the same position as the Claimant (that is, who was absent but had not tendered fit notes despite being asked to do so on a number of occasions), but who did not share her protected characteristics (either individually or cumulatively), would have been treated any differently.

[242]It follows that this fails as an allegation of direct discrimination. j) dismissing her

[243]The Claimant was dismissed. She was dismissed in circumstances where: 243.1. She had been continually absent due to sick leave for 44 weeks. 243.2. That sick leave followed a two periods of authorised unpaid leave, and a period of furlough. 243.3. Overall she had been away from work for two years. 243.4. The Respondent’s policy provided that dismissal would be considered after 26 weeks absence. 243.5. There was no evidence to suggest a return to work date in the foreseeable future. 243.6. The Claimant had not engaged with a further Occupational Health referral to allow the Respondent up-to-date medical advice about her prognosis. 243.7. Her own position was that she could not say when she would be well enough to return to work.

[244]We bear in mind that we have not heard evidence from Mr White, the dismissing officer. There was no explanation given for Mr White not being called to give evidence before us. We did hear evidence from Mr Patel, who heard the appeal.

[245]We must considered whether the Claimant was treated less favourably than a comparable employee who had Claimant’s absence record, and no positive prognosis regarding a return to work date, but who did not share her protected characteristics (individually or cumulatively).

[246]We can see nothing before us to suggest that such a hypothetical comparator would have been treated any differently to the Claimant. The way the Claimant was treated was significantly more generous than the Respondent’s own policy suggested it would be.

[247]Put simply, the Claimant was dismissed because she had been absent on sick leave for well in excess of the period in Respondent’s policy, with no prognosis for recovery and no timeframe for a possible return to work.

[248]It follows that this fails as a complaint of direct discrimination.

[249]We find that the Respondent had a provision, criterion or practice (“PCP”) of expecting face to face meetings or conversations to discuss sickness absence. Although the Claimant was always given other options, each meeting that she was invited to was set up to be in person, in one of the Respondent’s stores. We consider that there was an expectation that she would attend them (although not an absolute requirement). So we find that that was a PCP which was applied to the Claimant.

[250]We accept that that PCP put the Claimant at a substantial disadvantage because her condition made it difficult for her to have face to face meetings and conversations.

[251]The adjustment suggested by the Claimant was a home visit. We find that that would not have overcome the disadvantage relied upon by the Claimant. The disadvantage the Claimant was put to related to face-to-face meetings, and a preference to express herself in writing. We cannot see that having a meeting at home would overcome that disadvantage. There was nothing in the evidence before us to suggest that the Claimant would find a face-to-face meeting easier to engage with if it took place in her own home. The focus of the evidence, particularly the Claimant’s own contemporaneous emails, was on the fact that the Claimant found it easier to express herself in writing.

[252]In any event, we do not consider that it would have been reasonable for Mr Pillai, Mr White or Mr Patel to have attended to the Claimant’s house for a home meeting in the circumstances, given the risk of COVID during the period in question. The Respondent could not expect their staff to put themselves at risk. Mr Pillai, Mr White and Mr Patel were all attending work at the time, but they were doing so in circumstances where the Respondent could control the environment and put mitigatory measures in place. They could not control any mitigatory measures within the Claimant’s house.

[253]We consider also that the Respondent did make reasonable adjustments, by: 253.1. Offering to hold the meetings by teams or telephone; and 253.2. Agreeing to accept written submissions (which they did in each case)

[254]It follows that the complaint of failure to make reasonable adjustments fails.

[255]First we must consider the reason for the Claimant’s dismissal.

[256]For the reasons we have already set out, we are satisfied that capability was the real reason for the Claimant’s dismissal.

[257]We are satisfied also that the Respondent genuinely believed that the Claimant was no longer capable of performing her duties. Although we have not heard from Mr White, we have seen his outcome letter. Fundamentally, it is clear that he genuinely believed that she was not capable of performing her duties. Indeed, the Claimant agreed at the time that she was not capable of doing so, so it is not surprising that Mr White reached that conclusion.

[258]We find that the Claimant was adequately consulted with in that: 258.1. Mr Pillai gave the Claimant several opportunities to state her position, both in meetings and writing 258.2. So too did Mr White, by both inviting her to meetings and allowing her to provide written submissions.

[259]The Claimant considered that her written submissions were not adequately taken into account. But what she was never able to say in her written submissions was that there was a timescale for a possible return to work. She was clear and consistent about that. She was entirely honest and up-front in her correspondence about the considerable difficulties she was suffering from. In terms of the Respondent’s policy, that was the most important piece of information for them to take into account, since the most important consideration under the policy was that there be a timescale for a likely return to work. We are satisfied that the Claimant’s submissions were taken into account.

[260]We are satisfied also that the Respondent carried out a reasonable investigation. Both Mr Pillai and Mr White sought to re-refer the Claimant to Occupational Health. The Claimant refused to be referred by them. She did say she would be referred by Ms Gordon (slightly oddly, given that she had made allegations of dishonesty regarding Ms Gordon). But Ms Gordon was not managing her sickness absence at the time. The Claimant could not pick and choose her manager.

[261]It was of course open to the Claimant not to agree to be referred to Occupational Health. But it left Mr White (and then Mr Patel) in the position where they had to make decisions based on limited evidence.

[262]Importantly, of course, the Claimant’s own position was that she could not put any sort of timescale on her return to work. So even if further Occupational Health had been received, either: 262.1. It would have agreed with what the Claimant was saying, in which case it would not have changed anything; or 262.2. It would have been more optimistic than the Claimant, which would have given the Respondent considerable difficulty in relying it given what the Claimant herself was saying.

[263]The Claimant was still clearly very unwell at the time when her dismissal was being considered. She was at that point unable even to attend meetings by MS Teams or telephone, which in itself suggested that she was a long way away from being able to work a 7.5 hour shift in a busy shop.

[264]At the point when Mr White was considering the Claimant’s dismissal, the Claimant had already been absent for 44 weeks. Her inability to work had persisted for much longer than that, given the previous periods of unpaid leave and shielding. The Respondent’s policy provided that dismissal would be considered after 26 weeks absence. Importantly, the Respondent did not know how much longer they were being asked to wait, because the Claimant was unable to give any positive prognosis for an improvement in her condition.

[265]Of course Claimant had been an employee of the Respondent for a number of years, with an unblemished record. And she was in an unusual situation. But overall, with no end in sight, we do not consider that the Respondent could have been expected to wait longer against the possibility that the Claimant’s health may improve sufficiently to allow her to return work at some unspecified point in the future.

[266]Stepping back, we consider that the decision to dismiss the Claimant fell within the range of reasonable responses.

[267]Overall, we also consider that the process followed by the Respondent fell within the range of reasonable responses, in that: 267.1. The Claimant was warned about the possibility that she might be dismissed. The Claimant took issue with that warning, but it was important as a matter of fairness that the Respondent warned her that dismissal was a possibility. 267.2. The Respondent sought to meet with the Claimant to discuss the situation, and allowed her also to put submissions in writing in lieu of attending such meetings. 267.3. The Respondent gave the Claimant time for her condition to improve. 267.4. The Respondent attempted to refer the Claimant to Occupational Health for up to date evidence about her condition. 267.5. After the decision was taken to dismiss the Claimant, she was given the right of appeal. She exercised that right, and her appeal was considered by a more senior manager.

[268]The fact that Claimant was dismissed was no reflection of her ability to do the job, or of her commitment to the Respondent as an employee. She was clearly a dedicated employee – the force with which she advocated to retain her job is evidence of that. But she was simply, through absolutely no fault of her own, not well enough to work; and not likely to be well enough to do so within any reasonable timescale.

[269]It follows then that the claim of unfair dismissal fails.

Conclusions

[1]The Claimant brought claims of direct race discrimination, direct religion or belief discrimination, direct age discrimination, direct disability discrimination, discrimination arising from disability, failure to make reasonable adjustments, and unfair dismissal. A final hearing took place on 13, 14, 15, 16 and 17 May 2024. For the reasons we gave orally at the conclusion of that hearing, all of the claims were dismissed.

[2]The Claimant requested written reasons. These were provided to the parties on 9 October 2024. The Claimant now applies for a reconsideration of the Tribunal’s decision, as set out in those written reasons. The grounds are set out in the Claimant’s application of 23 October 2024.

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

[4]Rule 71 provides that an application for reconsideration under Rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties.

[5]The process by which the Tribunal considers an application for reconsideration is set out in Rule 72. Where the Judge considers that there is no reasonable prospect of the original decision being varied or revoked, the application shall be refused. Otherwise, the Tribunal shall send a notice to the parties setting out a time limit for any response to the application by the other parties, and seeking the views of the parties on whether the application can be determined without a hearing.

[6]Rules 71 and 72 give the Tribunal a broad discretion to determine whether reconsideration of a decision is appropriate. Guidance for Tribunals on how to approach applications for reconsideration was given by Simler P (as she was then) in the case of Liddington v 2Gether NHS Foundation Trust

UKEAT/0002/16/DA

. Paragraphs 34 and 35 provide as follows: “34. […] 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 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 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. Tribunals have a wide discretion whether or not to order reconsideration. 35. 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.”

[7]The Claimant’s application was received within the relevant time limit. I therefore consider it under Rule 72.

[8]The Claimant’s grounds for seeking reconsideration run to some 43 pages. The headline point within the Claimant’s application is an allegation that the Respondent falsified evidence submitted to the Tribunal. This is a reference to an email from Ms Gordon to the Claimant. The Claimant notes that two different versions of what is apparently the same email appear in the bundle. The first appears at [165]. It appears to have been sent on 3 November 2020 at 08:13. The Claimant replied to that email on 6 November 2020.

[9]The second appears at [169]. On that page the email appears to have been sent on 2 November 2020 at 20:13. That copy of the email was forwarded by Ms Gordon to Gemma Nelson on 5 March 2021. The formatting of the email was different, and the second version contained two points not contained in the earlier version:a. After saying “I explained that only myself will see the summary of the recommendation from Colleague Health”, which was in both versions, the second version went on to say “only if you give authorisation for me to receive the report”.

b. It then said this: “In the meantime, we will continue to put you through as unpaid, until we have a clear understanding and recommendations from Colleague Health. I also emphasised to you that we cannot submit you as unpaid indefinitely, we need to come to some agreement to aid/support your return to work. As I said on the phone, that I am here to support you in the best way possible and any options available to you through the Company’s point of view.”

[10]In her witness statement, Ms Gordon cross-referenced the second, lengthier, version of the email.

[11]The obvious inference of the apparent discrepancy between the emails is that Ms Gordon amended the email prior to forwarding it Ms Nelson. There are three things to say about the discrepancy:a. Firstly, the two emails in question were in the bundle. The Claimant had had the bundle for some months prior to the hearing. She did not raise the apparent discrepancy during the hearing. Therefore the Respondent, and more particularly Ms Gordon, have not had the opportunity to answer the allegation. It may be that there is an entirely innocent explanation for the discrepancy. There is no real explanation for why the point was not raised during the hearing, beyond that the Claimant had not previously noticed it.

b. Secondly, and more importantly, there was no specific allegation within the proceedings regarding what was said in that email. The main discrepancy in the email goes to what the Claimant was told about a period of unpaid leave. That was relevant as part of the background to the allegation that the Claimant was told that she should resign (dealt with in paragraphs 179 – 184 of the Judgment). More tangentially, it was relevant to the allegation that the Respondent took disciplinary action against the Claimant inappropriately (dealt with in paragraphs 237 – 242 of the Judgment), and the background circumstances leading to the Claimant’s dismissal. The point in issue was whether the Claimant had been told in or around October 2020 that she could only have 12 weeks of unpaid leave. Ms Gordon’s evidence was that she had told the Claimant that her unpaid leave would last for 12 weeks. The Tribunal did not accept Ms Gordon’s evidence in that regard. The Tribunal found instead that the Claimant had been told that her unpaid leave would last until the Occupational Health advice had been received and considered (that is, that it was open-ended). This is set out in paragraph 43 of the Judgment. So insofar as the email was relevant to a point in dispute, the Tribunal resolved that specific point broadly in the Claimant’s favour in any event.

c. Looking at the Judgment as a whole, the only point where the Tribunal accepted Ms Gordon’s evidence in circumstances where it was not supported by contemporaneous documents was regarding the allegation that she regularly scrutinised the Claimant on CCTV. The Claimant had no evidence to support that allegation (beyond a second hand report from an unnamed colleague). In the circumstances, even if the Tribunal had found Ms Gordon to be an entirely unreliable witness, there is no real prospect that it would have changed the outcome in respect of any of the allegations. That is because there would still have been no evidential basis for the CCTV allegation (as indeed the Claimant herself appeared to accept during her own evidence).

[12]In the circumstances, therefore, there is no realistic prospect of the Judgment being varied or revoked based on the email discrepancy.

[13]The remainder of the application consists of the Claimant highlighting the factual findings within the Tribunal’s Judgment with which she disagrees. The Claimant appears to misunderstand or misrepresent numerous aspects of the Judgment. At times, she appears to conflate quotations from documents with the Tribunal’s own conclusions.

[14]The Claimant refers at times to documents within the bundle which she says support her application, but which when reviewed do not do so. By way of example, the Claimant takes issue with the Tribunal’s finding at paragraph 30 that Ms Gordon did not suggest resignation during the conversation on 7 October 2020. She refers in support to 17 separate pages within the bundle, none of which appear to contain a contemporaneous record or allegation that Ms Gordon suggested resignation specifically during the conversation on 7 October 2020.

[15]The Claimant additionally seeks at various points to introduce new evidence. There is no explanation regarding why such evidence was not adduced in the Claimant’s statement. By way of example:a. She suggests that the person who told that Ms Gordon watched her on CCTV was Riaz Huq, Team Manager. That is not something she said in her evidence; nor was it recorded in EJ Fowell’s Case Management Order (which merely says that Ms Gordon would watch the CCTV footage and discuss what she saw with Mr Huq, not that it was Mr Huq who told the Claimant about it). The Tribunal’s findings on the point are dealt with in paragraph 22 of the Judgment.

b. She suggests that an employee who worked less than 15 hours per week was allowed to join the pharmacy adviser programme. Again, this was not in the Claimant’s evidence. The Tribunal’s findings on the point are dealt with in paragraph 23 of the Judgement.

[16]It would be wholly disproportionate to respond to each of the points the Claimant raises on a point-by-point basis. She is, of course, entitled to disagree with the Tribunal’s findings. But they are the findings reached by the Tribunal following a proper consideration of the evidence. The points raise in the application do not, individually or cumulatively, raise any realistic prospect of the Judgment being varied or revoked. And allowing the Claimant to (effectively) reargue the case would be contrary to the important principle of finality in litigation.

[17]The application for reconsideration is therefore refused.