Ms J Bramwell v Royal Mail Group Ltd: 2303651/2024 and 6016004/2025

EMPLOYMENT TRIBUNALS

Case No 2303651/2024, 6016004/2025

Between

Ms J BramwellClaimant

Royal Mail Group LtdRespondent

Before

Employment Judge Lambert

In person for claimant

Date 7 November 2025

JUDGMENT

[1]The Claimant’s claims are not well-founded and are dismissed. Employment Judge Lambert Date: 7th November 2025 Notes Written reasons will not be provided unless a written request is presented by either party within 14 days of the sending of this written record of the decision. Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal- decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. 10.2 Judgment - rule 61

[3]The Claimant’s claims are not well-founded and are dismissed.

REASONS

[1]The Claimant, Miss Bramwell, was employed by the Respondent as an Operational Postal Grade Post Woman from 22nd November 2021 until 28th February 2025. Early conciliation started on 26th March 2024 and concluded on 18th April 2024, the date she presented the first claim. Early conciliation commenced for a second time on 27th April 2025 and concluded on 2nd May 2025, the date she presented the second claim.

[2]Within the two claim forms presented, the Claimant raised the following claims:2.1 Unfair (constructive) dismissal

2.2 Direct Race discrimination

2.3 Pregnancy and maternity discrimination

2.4 Disability discrimination - failure to make reasonable adjustments

2.5 Victimisation

2.6 Unlawful deductions of wages

[3]The issues were mainly agreed at a third Preliminary Hearing in this matter before Employment Judge Corrigan on 17th September 2025. These were later clarified between the parties and a final list of agreed issues appeared in the trial bundle (p.116) and is replicated below at paragraphs 17 – 24.

[4]The Claimant relied upon the following disabilities: anxiety, stress and back pain. The Respondent accepted that these were disabilities throughout the material time. However, it denied that it had, or could reasonably be expected to have, knowledge of those disabilities, in the case of anxiety and stress before 6th March 2024 and, it says, it was never aware of the Claimant’s alleged disability in relation to back pain. Preliminary Issues

[5]At the outset of the hearing, the Claimant complained that the Respondent was late compiling and presenting her with the trial bundle and also in exchanging witness statements.

[6]The trial bundle should have been provided to her on 10th October 2025 and witness statements by 17th October 2025. She complained that whilst the Respondent attempted to provide her with the trial bundle electronically on 21st October 2025 and by post on 22nd October 2025, this was not in compliance with the timelines.

[7]The Claimant explained that she was so concerned about preparation for trial that she prepared her own trial bundle and served it upon the Respondent. At the outset of the hearing, she applied for a strike out of the Respondent’s Response Forms on the basis that:-7.1 a fair trial was not possible; and

7.2 the evidence contained in the Respondent’s witness statements were weak and had no reasonable prospects of success.

[8]Within her application, she acknowledged that she was able to proceed with the hearing on 3rd November 2025 and was not seeking an adjournment of the hearing if her application did not succeed.

[9]This application was resisted by the Respondent on the basis that whilst there was some failure to comply with case management orders a fair trial was still possible. It said that the Claimant was aware of most of the documentation in either of the bundles that had been prepared and it had sent a hard copy of its bundle to her via recorded delivery. This required her to sign at the point of delivery. She was not available at the point of delivery and the bundle was left at a nearby collection office for her to collect. The Claimant delayed in collecting the bundle and therefore bore some culpability for this state of affairs. The Respondent denied that its witness statements were weak and pointed towards the Claimant’s witness statement itself being weak.

[10]I considered the Claimant's application. Whilst acknowledging the Respondent’s failure to comply with some of the timelines, I noted that the Claimant accepted that she was in possession of most of the documents and, importantly, that she did not require an adjournment for further preparation because she was ready to proceed.

[11]Having considered both parties’ representations, I was satisfied that a fair trial was clearly possible. The Claimant confirmed she could proceed with the hearing and I concluded there was no prejudice to her in doing so. To strike out a claim on the basis that a fair trial is no longer possible is a high bar: Barber v RBS UKEAT 0301/15 and a strike out order should only be used as a last resort: Smith v Tesco Stores Limited

[2023] EAT 11

. I was presented with two trial bundles and agreed with the parties that we would use the trial bundle prepared by the Respondent as it was around 50 pages larger and contained all of the pleadings.

[12]Whilst I rejected the Claimant’s strike out application, I noted that there were issues with the documentation presented by the Respondent and several documents had to be added to the bundle as the hearing progressed. I consider that if the Respondent had acted as one would have expected of a very large organisation with professional representatives instructed, then these issues could and should have been resolved prior to the hearing.

[13]An example of this poor preparation was the presentation by the Respondent, on the morning of the hearing disclosing a COT3, which I will refer to below. This affected the list of issues because some of the claims could not proceed. These issues could and should have been addressed long before the start of the hearing. I make no criticism of Mr Chaudhry who represented the Respondent in these proceedings because he was engaged at a late stage as an advocate and was not involved in the preparation of this matter.

The Hearing

[14]The hearing took place via remote hearing. The Claimant represented herself and the Respondent was represented by Mr Chaudhry, solicitor-advocate.

[15]I was provided with witness statements and heard live evidence from the Claimant and for the Respondent, from Mr Osagie, Customer Operations Manager; Ms Solomon, Customer Operations Manager; and Mr Murray, Service Team Leader in the Recoveries and Overpayments Team.

[16]The page numbers referenced in this judgment are references to the pages set out in the trial bundle. I read the documents referred to within the statements and which I was directed to in cross examination of the witnesses. Any text appearing in [brackets] has been added by me to assist the reader.

The Agreed Issues

[17]Time limits17.1 Given the date the first claim form was presented and the dates of early conciliation, any complaint about something that happened before 27 December 2023 may not have been brought in time.

17.2 Given the date the second claim form was presented and the dates of early conciliation, any complaint about something that happened between the first claim and 28 January 2025 may not have been brought in time.

17.3 Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:17.3.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

17.3.2 If not, was there conduct extending over a period?

17.3.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

17.3.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:17.3.4.1 Why were the complaints not made to the Tribunal in time?

17.3.4.2 In any event, is it just and equitable in all the circumstances to extend time?

17.3.5 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?

[18]Unfair (constructive) dismissal18.1 Was the Claimant dismissed? Did the Respondent do the following things:18.1.1 Fail to act on the Claimant’s grievance dated June 2023;

18.1.2 Fail to allow the Claimant flexible working after her maternity leave ended on 16 December 2023;

18.1.3 Fail to act on the grievance submitted in February 2024;

18.1.4 Fail to implement the OH recommendations dated 6 March 2024;

18.1.5 Fail to allow access to internal systems to enable the Claimant to seek vacancies from December 2023 (when she attempted to return to work) until October 2024, when a response was received but did not provide functioning access. The Claimant says this formed part of a pattern of exclusion and was raised repeatedly.

18.1.6 Fail to complete the redeployment scope in December 2024.

18.1.7 Held a redeployment meeting in the Claimant’s absence in December 2024 and only notified her after the meeting had taken place via recorded delivery.

18.1.8 Failed to complete the redeployment scoping exercise after the Claimant submitted the form in December 2024.

18.1.9 The Claimant resigned in January 2025, with her last day of service being 28 February 2025.

18.2 The Claimant will rely on any acts of unlawful discrimination or victimisation that are upheld as set out below.

18.3 Did that breach the implied term of trust and confidence? The Tribunal will need to decide:18.3.1 whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent; and

18.3.2 whether it had reasonable and proper cause for doing so.

18.4 Did the Claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the Claimant’s resignation.

18.5 Did the Claimant affirm the contract before resigning? The Tribunal will need to decide whether the Claimant’s words or actions showed that they chose to keep the contract alive even after the breach.

18.6 If the Claimant was dismissed, what was the reason or principal reason for dismissal - i.e. what was the reason for the breach of contract? The Respondent relies on some other substantial reason.

18.7 Was it a potentially fair reason?

18.8 Did the Respondent act reasonably or unreasonably in all the circumstances, including the Respondent’s size and administrative resources, in treating that reason as a sufficient reason to dismiss the Claimant?

18.9 The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case.

[19]Disability19.1 The Respondent accepts the Claimant had a disability by virtue of

(1) anxiety and stress and

(2) back pain from 6 March 2024. It disputes knowledge in respect of the latter.

19.2 Did the Claimant have a disability as defined in section 6 of the Equality Act 2010 prior to 6 March 2024? The Claimant says that the Respondent should have known about her disability from around June 2023 when she submitted a grievance explicitly referring to race and disability discrimination.

19.3 The Tribunal will decide:19.3.1 Did they have a physical or mental impairment: 1) anxiety and stress 2) back pain?

19.3.2 Did it have a substantial adverse effect on their ability to carry out day-to-day activities?

19.3.3 If not, did the Claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?

19.3.4 Would the impairment have had a substantial adverse effect on their ability to carry out day-to-day activities without the treatment or other measures?

19.4 Were the effects of the impairment long-term? The Tribunal will decide:19.4.1 did they last at least 12 months, or were they likely to last at least 12 months?

19.4.2 if not, were they likely to recur?

[20]Direct race discrimination (Equality Act 2010 section 13)20.1 The Claimant describes her race as Black. Her comparators are White.

20.2 Did the Respondent do the following things:20.2.1 On 16 December 2023 Grace Solomon and Kevin Osagie sent the Claimant home and told her to use up her annual leave (180 the Claimant never returned.

20.2.2 Failed to pay the Claimant for the period 18-23 December 2023 (having said they would give the Claimant an advance and then subsequently recovering it).

20.2.3 Failed to grant the Claimant’s email requests for flexible working made in the period following 16 December 2023 while she was using her leave.

20.2.4 Kevin Osagie and HR failed to grant the Claimant’s request for access to the system to look for redeployment in the same period or at all up to October 2024.

20.2.5 Failed to grant the Claimant’s request for a career break/sabbatical leave from 6 January 2024 to 7 January 2025.

20.2.6 Failed to allow a return at the end of her annual leave in February 2024, leaving the Claimant unpaid until September 2024. The Claimant relies on HMRC documentation showing no payroll activity during this period.

20.2.7 In October 2024 Grace Solomon sent log in instructions to the internal system which did not work.

20.2.8 Was that less favourable treatment? Where no actual comparator exists, the Tribunal will consider whether a hypothetical comparator would have been treated more favourably. The Claimant says they were treated worse than Sharon from Wandsworth, a white comparator who was given the alternative role at the same grade and in the same delivery office due to childcare needs. She also relies on other white colleagues, in particular Stacy and another colleague in Battersea, who returned more easily from maternity leave and obtained a role with fewer hours. She also relies on a hypothetical white comparator, as her comparators are no longer employee.

20.3 If so, was it because of race?

[21]Pregnancy and Maternity Discrimination (Equality Act 2010 section 18)21.1 Did the Respondent treat the Claimant unfavourably by doing the following things:21.1.1 On 16 December 2023 Grace Solomon and Kevin Osagie sent the Claimant home and told her to use up her annual leave (180 the Claimant never returned.

21.1.2 Failed to pay the Claimant for the period 18–23 December 2023 (having said they would give the Claimant an advance and then subsequently recovering it).

21.1.3 Failed to grant the Claimant’s email requests for flexible working made in the period following 16 December 2023 while she was using her leave.

21.1.4 Kevin Osagie, Grace Solomon, and HR failed to grant the Claimant’s request for access to the system to look for redeployment in the same period or at all up to December 2024.

21.1.5 Failed to grant the Claimant’s request for a career break/sabbatical leave from 6 January 2024 to 7 January 2025.

21.1.6 Failed to allow a return at the end of the annual leave so that the Claimant remained unpaid until September 2024.

21.1.7 In October 2024 Grace Solomon sent log in instructions to the internal system which did not work?

21.2 Was this in the protected period?

21.3 Was it because of illness suffered by her?

21.4 Was the unfavourable treatment because the Claimant was exercising or seeking to exercise, or had exercised or sought to exercise, the right to ordinary or additional maternity leave or equivalent maternity leave?

[22]Reasonable Adjustments (Equality Act 2010 sections 20 & 21)22.1 The Claimant says the Respondent ought reasonably to have known of her disabilities (anxiety, stress, and back pain) from 23 June 2023. The Claimant says the Respondent had actual or constructive knowledge of her mental health disability from 23 June 2023 when she raised a grievance referring to stress and anxiety. She also provided fit notes and communications outlining her difficulties before the 6 March 2024 OH referral.

22.2 A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCPs:22.2.1 The requirement for the Claimant to carry out her normal contractual duty.

22.2.2 Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that the Claimant could not carry out the role due to her physical and mental health conditions?

22.2.3 Did the Respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage?

22.2.4 What steps could have been taken to avoid the disadvantage? The Claimant suggests:22.2.4.1 Reduced hours after 28 November 2023 (relating to back pain, anxiety and stress).

22.2.4.2 Providing an alternative role that was administrative or clerical from 28 November 2023 (relating to back pain, anxiety and stress).

22.2.4.3 Allowing hybrid or remote working (relating to back pain, anxiety and stress).

22.2.4.4 Allowing a phased return as recommended by occupational health in March 2024 (relating to back pain, anxiety and stress).

22.3 Was it reasonable for the Respondent to have to take those steps from 16 December 2023?

22.4 Did the Respondent fail to take those steps?

[23]Victimisation (Equality Act 2010 section 27)23.1 Did the Claimant do a protected act as follows:23.1.1 The Claimant relies on her grievances of 23 June 2023 and 20 February 2024.

23.1.2 Did the Respondent do the following things:23.1.2.1 Grace Solomon and Kevin Osagie ignored the Claimant’s informal flexible working request on 28 November 2023.

23.1.2.2 On 16th December 2023 Kevin Osagie / HR denial of access to internal systems and job vacancies.

23.1.2.3 On 12th January 2024 HR rejected an informal request for flexible working.

23.1.2.4 Grace Solomon failure to pay wages from 18th – 22nd December 2023.

23.1.2.5 Management and HR Delayed responding to the Claimant’s grievance in March 2025.

23.1.2.6 HR Sue Lester Delayed dealing with the Claimant’s grievance on 12th January 2024.

23.1.2.7 Grace Solomon failed to implement Occupational Health recommendations in March 2024.

23.2 By doing so, did it subject the Claimant to detriment?

23.3 If so, was it because the Claimant did a protected act?

23.4 Was it because the Respondent believed the Claimant had done, or might do, a protected act?

[24]Unauthorised deductions/holiday pay24.1 Did the Respondent make unauthorised deductions from the Claimant’s wages and if so how much was deducted?

24.2 Did it make deductions in respect of pay for 18th – 22nd December 2023? The Respondent has produced a pay slip showing this was paid but the Claimant says it was deducted again in the subsequent pay.

24.3 Was £2,016.95 unlawfully deducted from the Claimant’s final salary?

24.4 Did the Claimant have 100.40 hours of unpaid accrued holiday pay outstanding at the time of her employment ending? Did the Respondent fail to pay it?

24.5 The Respondent says deductions were due to a maternity leave overpayment. The Claimant disputes this and says she was led to believe the money was hers to use.

24.6 If there was an overpayment, was it recoverable? The Tribunal will consider:24.6.1 Was the overpayment primarily the Respondent’s fault?

24.6.2 Did the Respondent lead the Claimant to believe she could treat it as her own?

24.6.3 Did the Claimant spend the money in good faith?

24.6.4 If the overpayment was not recoverable should this be treated as a breach of contract claim?

Findings of Fact

[25]I make these findings of fact based on the balance of probabilities.

[26]The Claimant was employed by the Respondent from 22nd November 2021 in an Operational Postal Grade as Postwoman, working shifts for 25 hours per week. These details were confirmed in a statement of terms and conditions of employment (“the Contract”) p.191. Clause 23.1 of the Contract states: You agree that Royal Mail may at any time deduct from your salary or any other benefit payable to you any sum including any overpayment of salary or loan made to you by Royal Mail or any deductions arising from disciplinary action (including deductions resulting from a reduction in pay, downgrading or disciplinary transfers) which in the reasonable opinion of Royal Mail is owing by you to it whether by reason of any default on your part or otherwise at the time of such deduction is made.

[27]I will return to this clause later in this judgment. Maternity Leave

[28]The Claimant became pregnant during 2022. A MAT B1 certificate completed for her and dated 25th October 2022 confirmed that her expected week of confinement was 2nd February 2023 (p.199).

[29]The Claimant commenced maternity leave on or around 17th January 2023 (p.202) intending to return to work in December 2023. In June 2023, the Claimant raised a grievance complaining of sex, pregnancy and maternity discrimination (“the First Grievance”).

[30]The Claimant presented claims for race, sex, pregnancy and maternity discrimination in earlier Tribunal claims under case numbers: 2300120/2023 & 2303086/2023 (“the Earlier Proceedings”). These were settled via a COT3 executed on 26th July 2023. This was the COT3 provided to the Tribunal at the commencement of this hearing and referred to in paragraph 13 above. The settlement was in full and final settlement of the Earlier Proceedings and any other claim arising out of the facts and circumstances of these claims. It was common ground that the matters referred to in the First Grievance were settled. However, this did not prevent the First Grievance being relied upon as a protected act for the purpose of the victimisation claim, which the Claimant did in these proceedings.

[31]In September 2023, Mr Kevin Osagie, Customer Operations Manager, took over line management responsibilities for the Claimant. He sent a text to the Claimant soon after introducing himself and inviting the Claimant to contact him for a chat (p.203). The Claimant responded by text confirming that she intended to return to work on Tuesday 19th December 2023 and asked to reduce her hours to 8 hours on a Saturday, this being what she could afford due to childcare.

[32]The Claimant followed this up with an email to Mr Osagie on 28th November 2023 (p.204). This stated that she intended to return on Saturday 16th December 2023 at 9am, earlier than notified in her original text. She reiterated her request to have her hours reduced to 8 hours on Saturday only and she explained that this request was due to an emergency C-Section and changed circumstances relating to childcare. The Claimant made no reference to her request being related to stress, anxiety or back pain.

[33]Mr Osagie responded the next day confirming he would forward on the Claimant’s request. Despite this acknowledgement, Mr Osagie gave evidence that he failed to pass on the Claimant’s email. His reason for failing to do so was that he had become extremely stressed and was struggling with workload at this time. He subsequently took a period of prolonged absence for around 4 months, from 20th December 2023. Meeting: 16th December 2023

[34]It was common ground between the parties that the Claimant returned to work on Saturday 16th December 2023 at 9am. This is the date when her maternity leave ended. There was a dispute about some issues arising from this meeting but the following points were agreed.

[35]The Claimant reported to Mr Osagie and they had a meeting to discuss the Claimant’s return to work from maternity leave. This was the first time Mr Osagie and the Claimant had met in person.

[36]Unfortunately, Mr Osagie had difficulties in accessing the Respondent’s internal computer system and could not complete the appropriate steps to confirm the Claimant’s return to work. He contacted the Respondent’s IT team to try and resolve the problem. It was not resolved at the time.

[37]Miss Solomon, who at this time was employed by the Respondent as a Parcel Customer Operational Manager, was training to become the Customer Operations Manager and was shadowing Mr Osagie. She attended most of the meeting with the Claimant and Mr Osagie on 16th December 2023.

[38]During this meeting the Claimant told Mr Osagie that she had back issues following the C-section and would not be able to carry out her normal duties, which included walking, lifting parcels and moving yorks.

[39]The following evidence was disputed and I have set out the respective witnesses’ recollection and then made findings. Mr Osagie

[40]Mr Osagie’s evidence was that during this meeting the Claimant told him she was not ready to return to work and she wanted to look at different jobs within the Respondent. The Claimant asked if she could work in the Caller’s Office but Mr Osagie responded that there was no available role at that time. Mr Osagie told the Claimant to look at Success Factors, a dedicated app operated by the Respondent which included, amongst other matters, an internal vacancy list.

[41]The Claimant informed him that she could not access the Success Factors app and Mr Osagie contacted IT to resolve the matter. He spoke with IT, but the matter could not be resolved. His evidence was that the issue was related to a password reset and the Claimant had to complete the various actions herself using the app. This issue was not resolved and subsequently Mr Osagie provided the Claimant with IT’s contact details so she could follow up on this outside the meeting.

[42]His evidence was that at some point during the meeting, the Claimant suggested that she could use the annual leave she had accrued during her maternity leave whilst this matter was resolved. The Claimant subsequently sent an email to Mr Osagie at 9:43am that day (“the Holiday Request Email”), which was copied to Miss Solomon, making a request to take annual leave with immediate effect. This application was granted. Miss Solomon

[43]Miss Solomon’s evidence was consistent with Mr Osagie’s evidence. She recalled the Claimant talking about looking for other roles within the Respondent and the Claimant discussing taking annual leave. Both Mr Osagie and Miss Solomon denied the allegation that they sent the Claimant home and instructed her to use annual leave. Miss Solomon confirmed that she received the Holiday Request Email during the meeting. Claimant

[44]The Claimant agreed that Mr Osagie had issues with the Respondent’s internal computer system and that he spoke with IT. She agreed that she told Mr Osagie that she could not return to her normal duties because of her back issues, although she felt that Mr Osagie was, or should have been, already aware of this because she had informed him via the earlier text messages and email of 28th November 2023. However, as I have stated above, there was no reference to the Claimant’s back issues within the earlier text message and there was no evidence establishing that Mr Osagie was aware of the Claimant’s back issues at this point (paragraph 32 above).

[45]Her case is that both Mr Osagie and Miss Solomon sent her home and told her to use up her annual leave.

[46]There was a clear dispute in evidence on several issues. Having listened to the witnesses give live evidence, I prefer the evidence of Mr Osagie and Miss Solomon on this point. I do so because I felt that the Claimant’s evidence was inconsistent and often in conflict with the documentary evidence.

[47]Initially her evidence in cross examination was that she had not spoken to IT at all during the meeting on 16th December 2023. This was said several times in response to questions from Mr Chaudhry. Later in cross examination, her evidence changed and she confirmed that she had spoken with IT at the meeting on 16th December 2023 but not after the meeting.

[48]I put this apparent contradiction to her, explaining clearly the disparity in her evidence. The Claimant stated that she had always said that she had spoken to IT during this meeting. This contradicted her earlier answers, but she went further and denied that she had given the earlier evidence that I had noted and read back to her. Later in evidence she confirmed that she had spoken with IT after the meeting on 16th December 2023 in relation to accessing Success Factors. This contradiction was again put to her, but she maintained there was no contradiction and again denied providing the earlier contradictory evidence.

[49]In cross examination when Mr Osagie’s account was put to her, the Claimant stated, on several occasions, that she had never heard of “Success Factors” until after these proceedings had been presented because it was referred to by the Respondent in its Response Form. However, the Claimant lodged a further grievance with the Respondent on 20th February 2024 (“the Second Grievance”) (p.207). Within the Second Grievance, she expressly referred to Success Factors in that email. In response to a question from me asking for clarification of her evidence, she then accepted that she had accessed and used Success Factors prior to her maternity leave, despite her earlier evidence to the contrary. This evidence was relevant to her later claim that the Respondent had failed to allow her access to this app, which in turn would allow her to apply for internal vacancies. By admitting she had contacted IT after the meeting on 16th December 2023, she was affecting the strength of this element of her claim because it supported Mr Osagie’s assertion that the reason why the Claimant could not access this app was due to a password reset issue that the Claimant had to resolve herself.

[50]I have concluded from this that the Claimant was solely focused upon providing evidence that she felt was supportive of her claim at the point she was giving evidence, rather than simply focusing upon providing accurate evidence. I found the Claimant’s evidence inconsistent and liable to change and I approached her evidence with caution. Where there was a conflict with other witnesses’ evidence, I preferred their evidence unless there was contemporaneous evidence supporting the Claimant’s evidence. Annual Leave

[51]In relation to the annual leave issue, the Holiday Request Email that the Claimant sent to Mr Osagie and Miss Solomon on 16th December 2023 did not contain any reference to her being sent home, nor being directed to use her annual leave against her wishes. I find these omissions significant because if the Claimant was sent home and forced to take annual leave as she complained, then it seems very likely that she would have said so in this email. I have concluded that the reason these complaints were not referenced in the Holiday Request Email is because she was not sent home and told to take annual leave as she asserts.

[52]This conclusion is supported by the Second Grievance, where the Claimant raised various complaints surrounding her return to work from maternity leave but at no point did she complain that she was sent home and told to use her annual leave. If this had genuinely happened and she was disgruntled about it, it is not credible that she failed to raise it in a grievance complaining about this issue. For these reasons I prefer the evidence of Mr Osagie and Miss Solomon on this point who provided corroborated evidence that they did not send the Claimant home or require her to take annual leave.

[53]In relation to the issue of whether Mr Osagie could reasonably have been aware of the Claimant’s back issue, I do consider he could or should have been. Prior to this meeting, they had not met in person and the totality of the evidence of their interactions before this meeting were the text messages and email of 28th November 2023. I accept that the Claimant asked about reducing her hours, but this was because of childcare issues. She did mention an emergency C-section in these messages but there is nothing that could be considered as putting Mr Osagie on notice that the Claimant had a back issue and she could not carry out her normal duties, simply that she wanted a reduction in hours. The first time Mr Osagie could have been aware of the Claimant’s back pain being a reason for her request not to carry on her usual duties was at the meeting itself, on 16th December 2023.

[54]Mr Osagie’s evidence was that he could not agree any adjustments to the Claimant’s role at this meeting because this was the first time he was aware of the issue. He would need to investigate matters, including receiving input from occupational health and no referral had been made at this point. I find this to be a reasonable explanation.

[55]On 20th December 2023, Mr Osagie commenced a period of sickness absence lasting around 4 months until April 2024. During this period, Miss Solomon took over as line manager for the Claimant and Mr Osagie’s involvement in this matter ended. She was line managing around 60 employees at this time. Failure To Receive Pay Between 18th to 22nd December 2023

[56]On 23rd December 2023 the Claimant complained to the Respondent that she had not received pay between 18th and 22nd December 2023. She complained that this was due to discrimination.

[57]The Respondent accepted that the Claimant was not initially paid during this period, although it was subsequently corrected. It denied that this failure was because of discrimination, but it says because of an administrative error.

[58]Mr Adrian Murray, the Respondent’s Service Team Leader in the Recoveries and Overpayments Team, gave evidence explaining from the records available to him that the Claimant’s maternity leave was not ended on the Respondent’s internal computer system until 23rd December 2023. Until this occurred, the Respondent’s payroll system treated the Claimant as being absent due to maternity. The Claimant had exhausted her maternity pay at this point and therefore was not entitled to receive pay. Upon becoming aware of the issue, the payroll team calculated the Claimant’s expected net pay at £270 and processed a special same day payment on 27th December 2023. The pay position was subsequently corrected with the Claimant receiving 2 weeks’ pay on 29th December 2023 with the £270 net being deducted on 5th January 2024.

[59]Whilst this was understandably frustrating for the Claimant, I accept Mr Murray’s evidence that once the payroll team was informed, the position was corrected relatively quickly. From the evidence available to me, it seems that the issues Mr Osagie encountered in not being able to access the Respondent’s internal computer system during the meeting on 16th December 2023 was the cause of the failure to record the Claimant’s return from maternity leave, leading to this issue. Sue Lester Delayed Dealing With Grievance

[60]On 12th January 2024, the Claimant sent an email to Miss Solomon and Mr Osagie attaching a sabbatical leave request form (p.206). She subsequently forwarded this application to the Respondent’s Employee Relations Casework Management team later that day at 17:36 (p.206).

[61]Whilst not originally within the trial bundle, the Claimant confirmed in evidence that she had received an email response from Mrs Sue Lester, Service Team Leader, Employee Relations Case Management Team. This was subsequently adduced and showed that Ms Lester had responded to the Claimant’s email at 17:42 on 12th January 2024, confirming that the ERCM team did not deal with this type of query and she had forwarded it on to Mr David Lyne, COM at the Claimant’s workplace.

[62]One of the Claimant complaints of victimisation is that Sue Lester delayed dealing with the Claimant’s grievance on 12th January 2024. Mrs Lester was not dealing with the Claimant’s grievance because the First Grievance had been concluded and the Second Grievance had not yet been presented. From the evidence before me, Mrs Lester only had involvement with the sabbatical leave request. This was to signpost to the Claimant that she was not the correct person to deal with that request. Taking 6 minutes to respond to the Claimant’s email is not evidence of delay. Second Grievance

[63]At this point the Claimant was absent due to paid annual leave. This ended on or around 9th February 2024 (p.219).

[64]On or around 20th February 2024, the Claimant raised the Second Grievance complaining about:64.1 a failure to respond to her sabbatical leave request;

64.2 log in details for Success Factors;

64.3 no occupational health assessment being carried out; and

64.4 not being offered any alternative roles.

[65]The Claimant expressly stated that she felt the settlement of the Earlier Proceedings was affecting the decisions being made about her.

[66]Miss Solomon’s evidence was that she was contacted by Mr Carl RobinsonWoodhouse, People Case Support Manager, on 28th February 2024. He informed her that the Claimant had raised a complaint and had not received any responses to her application for a career break; she required a Success Factor password; and also a referral to occupational health.

[67]Miss Solomon explained that she could not fully recall the events at this time, but she remembers attempting to contact the Claimant to discuss matters but was not able to. She made a referral for the Claimant to be assessed by Occupational Health and discussed the Claimant’s career break application with Mr Sean Watson, Operational Performance Lead. He informed Miss Solomon that he would not agree to the Claimant’s application because she was already absent.

[68]Miss Solomon also reviewed the issue of the password for Success Factors and realised that this was an issue for the Claimant to resolve herself with IT and using the app. Miss Solomon recalls discussing this with the Claimant but cannot recall exactly when. Occupational Health Report: 6th March 2024

[69]An Occupational Health report for the Claimant was received on 6th March 2024 (p.211 – 214). Miss Solomon says she attempted to contact the Claimant to discuss matters but was not successful. She wrote to the Claimant by letter dated 15th March 2024 (p. 215). Her evidence was that despite these attempts, the Claimant did not respond. Therefore, Miss Solomon could not discuss and agree any adjustments with the Claimant.

[70]On 25th March 2024, the Claimant supplied a sick note for one month indicating she may be fit for work with amended duties due to stress at work and back pains (p.224). Miss Solomon’s evidence was that she took advice from Sean Watson and he instructed her to record the Claimant’s absence as unpaid special leave. Abeyance

[71]Curiously matters went into abeyance from 25th March 2024 until 20th August 2024. It appears that both parties were prepared to accept the status quo of the Claimant being absent without pay. The Claimant did not actively engage with the Respondent or pursue matters with it, which on the face of it, is perplexing. Most employees in this situation, not working and not getting paid, are quick to complain, although this situation was consistent with the Claimant’s desire to be placed on sabbatical leave where she would not receive pay, but would not be required to work. However, this is not a matter that was in issue in this claim.

[72]On 20th August 2024, Miss Solomon wrote to the Claimant asking her to attend a meeting on 24th August 2024 (p.217/218) to discuss the Claimant’s ongoing unpaid absence from work. Miss Solomon’s evidence was that her action was prompted by the Respondent’s HR team who informed her that the Claimant’s unpaid special leave needed to be addressed.

[73]The Claimant attended this meeting with her union representative, Mr John O’Hanlon. Notes were taken at the meeting although they were not agreed (p.219/220). The notes record that the Claimant confirmed she was still experiencing back pain and could not return to her normal duties. She informed Miss Solomon that she could not walk far, could only drive an automatic car for no longer than 1 hour before requiring a break, needed assistance to pull or push trolleys and was unable to lift heavy items. The notes also record the Claimant agreed to a further occupational health referral and for Miss Solomon to hold a Teams call with the Claimant every Friday at midday, as a form of catch-up.

[74]On 3rd September 2024 (p.221), Miss Solomon wrote to the Claimant noting that she had attempted to contact the Claimant without success on 30th September 2024. It was accepted by the Claimant and Miss Solomon that this date was a typographical error and the date should have been recorded as 30th August 2024. The letter went on to arrange a further meeting between the Claimant and Miss Solomon on 6th September 2024.

[75]The Claimant responded by email on 4th September 2024 querying why reference was made in Miss Solomon’s letter to her continued sickness absence. As far as the Claimant was concerned, her fit note had ended in April 2024. The Claimant acknowledged that she had agreed to weekly catch-up meetings but now stated that she no longer wished to participate. She would only communicate via email. She also stated that her health had not changed from March 2024, so there was no need for a further occupational health report, thus withdrawing her consent to attend a further occupational health assessment.

[76]This letter was also of note because Miss Solomon had included the telephone number she had attempted to contact the Claimant upon. The Claimant asserted that this was the wrong number and she had no record of Miss Solomon contacting her. She disputed that Miss Solomon had contacted her and her evidence was that Miss Solomon had obviously left a message on the wrong number. The actual document in the trial bundle had the number redacted, so it was not visible. Helpfully the Claimant was able to supply an unredacted version of this letter and it was clear that the number recorded in the letter was not her number. On the face of it, this supported the Claimant’s assertion that Miss Solomon had been using the wrong number.

[77]Miss Solomon confirmed in evidence that this was the wrong number. However she had used the number recorded on her phone against the Claimant’s name. This was the same number that she had been using to contact the Claimant throughout. It was confirmed with the Claimant that the number recorded on Miss Solomon’s phone was the correct number for the Claimant. From this, I concluded that Miss Solomon had been using the correct number to contact the Claimant but had recorded an incorrect number in this letter. I preferred Miss Solomon’s evidence over the Claimant’s and accepted that the Miss Solomon had attempted to contact the Claimant by telephone.

[78]On 9th September 2024, Miss Solomon sent a further letter to the Claimant (p.225) reflecting on matters and confirming the Claimant’s absence from 9th September 2024 would be recorded as sickness. The Claimant was informed that she would need to provide a fit note from 16th September 2024 onwards. Miss Solomon explained the purpose of an updated occupational health report and included a further flexible working request form for the Claimant to complete.

[79]On 10th September 2024, the Claimant emailed a response (p.237):-79.1 reiterating her refusal to attend for a further occupational health assessment;

79.2 stating that she felt bombarded by Miss Solomon’s emails, hand delivered letters and 3 special recorded delivery letters;

79.3 challenging her absence being recorded as sick leave as she wanted it recorded as unpaid special leave; and

79.4 requesting Miss Solomon send her a sabbatical request form.

[80]I accept Miss Solomon’s evidence that she attempted to contact the Claimant via telephone and through letters. During cross examination, the Claimant accepted that whilst she had a letter box separate from her accommodation and that she would not retrieve mail from it every day. She would usually only review the contents of the letter box once a week. This explained why the Claimant felt bombarded by the various letters sent to her because the Claimant was likely to have received them in a batch when she reviewed the contents of her letter box.

[81]Miss Solomon sent a further letter to the Claimant on 28th October 2024 (p.226) and amongst other matters enclosed a sabbatical request form and requested that regular discussions take place on Fridays at 12pm between herself and the Claimant. She also provided information as to how the Claimant could access Success Factors.

[82]Miss Solomon’s evidence was that she attempted to contact the Claimant on Friday 1st November 2024 at 12pm but the Claimant did not answer. She sent a further letter on 5th November 2024 (p.227) asking the Claimant to contact her by Friday 8th November 2024.

[83]On 8th November 2024, Miss Solomon sent a further letter noting that the Claimant had not contacted her and suggested one final opportunity for the Claimant to contact her by Wednesday 13th November 2024, otherwise further action may be taken. On 21st November 2024, Miss Solomon sent a letter to the Claimant requesting that she attend a meeting with her and requesting that the Claimant complete a Redeployment Opportunities Scoping form. The letter is noteworthy because no date is provided for the meeting although no issue was taken with this during the hearing.

[84]The Claimant responded by email on 6th December 2024 attaching a completed Redeployment Scoping form. This email dealt with several matters, but the Claimant noted that she was “… happy for [her] absences to be correctly recorded as ‘unpaid special leave’…” and also suggesting that Miss Solomon had stated the Claimant’s incorrect telephone number on all of the previous 6 letters. The Claimant accepted in evidence that this was not accurate – only Miss Solomon’s letter of 3rd September 2024 had included the incorrect number. The other letters did not refer to the number. Meeting To Discuss Redeployment?

[85]The Claimant was invited to attend a meeting to discuss her redeployment with the Respondent on 18th December 2024, by letter dated 13th December 2024. The Claimant’s evidence was that she did not open this letter until 19th December 2024. She concluded that the meeting had gone ahead with her being present and this formed part of her claim for unfair constructive dismissal. In cross examination, the Claimant accepted that she had no evidence that this meeting went ahead so her assertion that it did in her absence was unfounded. She also accepted she did not follow up to respond to this letter.

[86]On 31st January 2025, the Claimant sent a letter to the Delivery Office Manager/Miss Solomon confirming that as of 28th February 2025 the Claimant was resigning due to personal reasons – stress related. Miss Solomon’s evidence was that she did not receive this letter although she did receive an email from the Claimant that day attaching a fit work confirming the Claimant was not fit for work (p.252).

[87]Miss Solomon received a further letter from the Claimant on 19th February 2025 attaching the resignation letter and asking Miss Solomon to acknowledge it. She did so on 25th February 2025. Comparator

[88]Miss Solomon and Mr Osagie gave evidence concerning Sharon, a comparator raised by the Claimant as a white female who had returned from maternity leave and was offered redeployment in the Caller’s Office. Miss Solomon explained that Sharon returned to her role in delivery, a role the Claimant could no longer carry out due to her back pain and she sometimes assisted in the Caller’s office when they were short. Mr Osagie’s evidence on this point was broadly similar although he asserted that the roles in the Caller’s office were reserved for people who had medical conditions. He acknowledged that Sharon assisted on a Saturday and in the evenings although this role was disbanded in 2023. This evidence was not contested by the Claimant. Unauthorised Deduction

[89]Unfortunately, the curse of the Respondent failing to update personal records struck again, but this time in the Claimant’s favour. Her leaving date was not recorded on the Respondent’s internal computer system on 28th February 2025. This issue was not picked up until the Respondent’s payroll team ran an audit several weeks later. At this point it was noted that the Claimant, despite leaving on 28th February 2025, received full pay for 5 weeks afterwards until 4th April 2025. This amounted to an overpayment of salary of £2,016.95.

[90]The Respondent calculated what was owed to the Claimant in accrued but untaken annual leave and deducted this sum from the overpayment, leaving a payment of £1,056.83 outstanding.

[91]Mr Murray confirmed that the amount of leave deducted equated to 78 hours. The Claimant challenged this because she was felt she was owed 100.40 hours, based on the amount set out on the Respondent’s app. However, this was for the full year and was not adjusted to the Claimant’s earlier leaving date.

[92]An additional complication was that these payments had been made in an earlier tax year and did not reflect the fact that deductions had been made for tax and NI. The Respondent recalculated and confirmed that the final amount outstanding as owed by the Claimant was £477.43.

[93]The Claimant did not really challenge Mr Murray’s evidence in terms of the amounts of the overpayment, simply to confirm that the overpayment did not arise due to her fault and that there the Respondent had no right to make the deductions. Mr Murray confirmed the former and denied the latter.

[94]Several of the Claimant’s victimisation complaints rely upon the First Grievance being the protected act. The Claimant offered little evidence that Mr Osagie was aware of either the First or Second Grievance. Mr Osagie’s evidence was that he was not the Claimant’s line manager until mid September 2023 (a fact agreed to by the Claimant) had only had limited interaction with her and was not aware of the First Grievance in June 2023. He also claimed that he was not aware of the Second Grievance because he was absent due to sickness and never acted as the Claimant’s line manager again. I accept Mr Osagie’s evidence on this point.

[95]Miss Solomon’s evidence was that she was not aware of the First Grievance because she did not take over line management for the Claimant until on or after 20th December 2023. She was aware of the Second Grievance because she dealt with it. Again, I accept this evidence. Relevant Law Constructive Dismissal

Relevant Law

[96]Section 95(1)(c) of the Employment Rights Act 1996 provides that: “…an employee is dismissed by his employer if… (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

[97]The leading authority in this area of law is Western Excavating (ECC) Ltd v Sharp

[1978] ICR 221

which when read with Malik v BCCI UKHL [23] requires Tribunals to decide in claims of constructive unfair dismissal:99.1 Did the Respondent commit a repudiatory [sometimes used interchangeably with fundamental] breach of the implied term of trust and confidence? To answer this question, the Tribunal will need to decide whether the Respondent:99.1.1 behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent.

99.1.2 had reasonable and proper cause for doing so.

99.2 Did the Claimant resign because of the Respondent’s breach(es) of contract?

99.3 Did the Claimant delay before resigning and as a consequence affirm the contract?

99.4 In the event that there was a constructive unfair dismissal, was the dismissal otherwise fair and reasonable within the meaning of Section 98(4) of the Employment Rights Act 1996?

[98]The Claimant relies upon the factors set out in paragraphs 18.1.1 – 18.1.9 as incidents of repudiatory breach of the Contract. Issue 18.1.1: Failure to act on the Claimant’s First Grievance.

[99]The parties agreed at the outset of the hearing that this allegation must fail because it was captured within the wording of the COT3 agreement dated 26th July 2023 settling the Earlier Proceedings. This was described in paragraph 13 above. It could not be pursued in these proceedings and it fails. Issue 18.1.2: Failure to allow the Claimant flexible working after her maternity leave ended on 16 December 2023.

[100]The Claimant made an informal request to work flexibly via text messages to Mr Osagie and through her email to him on 28th November 2023. Mr Osagie accepted that he failed to forward the email on to HR but this was an oversight on his part related to his workload and his own health at this time. A few weeks after this, he had a lengthy period of sickness absence.

[101]The Claimant reiterated her request to work 8 hours a day on Saturdays only during the meeting on 16th December 2023. Mr Osagie’s evidence, which I accepted, was that he was not in a position to agree to this request at this stage.

[102]Within the Second Grievance dated 20th February 2024, the Claimant only raised a complaint about her sabbatical request, not her flexible working request. After raising the Second Grievance, the Claimant failed to engage with the Respondent and when she did, it related to redeployment, not flexible working.

[103]I consider there was a reasonable and proper cause for Mr Osagie’s actions due to it being an oversight due to his work pressures. Whilst regrettable, I consider this is a reasonable and proper explanation for his actions. The Claimant’s complaints after the meeting of 16th December 2023 related to her sabbatical and redeployment, not her flexible working request. The Respondent’s actions were reasonable and proper in the light of this.

[104]It follows that I do not consider this allegation to be a breach of the implied term of trust and confidence and this element of the Claimant’s case fails. Issue 18.1.3: Failure to act on the Second Grievance.

[105]The evidence before me was that Mr Carl Robinson-Woodhouse contacted Miss Solomon requiring her to respond. I accepted that she did so by facilitating a referral to OH, which led to the OH Report dated 6th March 2024. She also chased a response to the Claimant’s sabbatical request and spoke to the Claimant about access to Success Factors. Miss Solomon also sent a letter of 15th March 2024 which the Claimant did not respond to.

[106]I am satisfied that the Respondent did act upon the Second Grievance. However, it could only take matters so far without the Claimant’s engagement. I have found that the Claimant failed to engage for lengthy periods. I have therefore concluded that the factual basis for this allegation has not been established by the Claimant and this is not a breach of the implied term.

[107]This element of the claim fails. Issue 18.1.4: Failure to implement the OH recommendations dated 6 March 2024

[108]I have made findings of fact that the Claimant did not engage with the Respondent to discuss and agree what recommendations were required. The only meeting that took place between the Claimant and Miss Solomon was on 24th August 2024 where, initially, the Claimant agreed to attend for a further OH assessment to be conducted. From the findings above, the Claimant changed her mind and refused a further OH assessment. She then failed to engage appropriately with the Respondent.

[109]I am satisfied that this is not a breach of contract by the Respondent because there is a reasonable and proper explanation for the Respondent’s actions, namely the Claimant’s failure to engage appropriately to discuss matters with the Respondent. It is also noteworthy that at no point did the Claimant indicate she was able to return to work. I have found that the status quo for her not working was consistent with her request for a sabbatical. The failure to implement any adjustments was not the cause of the Claimant’s absence.

[110]This element of the claim fails. Issue 18.1.5: Fail to allow access to internal systems from October 2023 up to December 2024

[111]From the evidence, I am satisfied that the issue was a failure by the Claimant to follow instructions to change her password. She was familiar with Success Factors and she had the relevant details to contact the Respondent’s IT team to resolve matters. Any failure was caused by the Claimant’s failure to access the app.

[112]There was a reasonable and proper explanation for the Respondent’s actions and this element of the claim fails. Issue 18.1.6: Failure to complete the redeployment scope in December 2024. Issue 18.1.7: Held a redeployment meeting in the Claimant’s absence in December 2024 and only notified her after the meeting had taken place via recorded delivery. Issues 18.1.8: Failed to complete the redeployment scoping exercise after the Claimant submitted the form in December 2024.

[113]Issues 18.1.6, 18.1.17 and 18.1.8 are similar and I have considered them together.

[114]Based on the Claimant’s evidence, I consider that this issue arose out of a misunderstanding on the Claimant’s part. She accepted in evidence that she had a mail box away from where she lives and that she retrieves mail roughly once a week. Her evidence was that she opened the letter dated 13th December 2024 on 19th December 2024, one day after the meeting was scheduled to take place. She confirmed she had no evidence to support her assertion that a redeployment meeting went ahead and the evidence from Miss Solomon was that it did not.

[115]As such, there is no evidence to support the factual basis for allegation 18.1.7 that a meeting took place. This allegation fails.

[116]I have found that the Respondent did not complete the Redeployment Scoping exercise but this arose because the Claimant failed to engage with that process. From its point of view, the Claimant did not attend the meeting it had scheduled to discuss matters and resigned around a month later without taking any further steps to action matters. I find that the reason the Redeployment Scoping exercise was not completed was because of the Claimant’s failure to attend the meeting and otherwise progress matters.

[117]This was not the fault of the Respondent and allegations 18.1.6 and 18.1.8 also fail.

[118]Issue 18.1.9 is a factual statement that the Claimant resigned. It is not an allegation in its own right.

[119]In conclusion, the Claimant’s claim for unfair constructive dismissal fails because she has either failed to establish the factual basis for the allegations raised or I have found there was a reasonable and proper explanation or cause for the Respondent’s actions.

[120]Whilst not specifically pleaded, I also considered the “last straw” doctrine and considered all of the incidents together to assess whether, taken in their entirety, they could amount to a repudiatory breach of contract. I find they do not. Pregnancy and Race Discrimination

[121]As can be seen from the issues at paragraphs 20 and 21, the Claimant relies upon virtually the same allegations to support her claims for pregnancy discrimination (section 18 of the EqA) and direct race discrimination (Section 13 of the EqA). I have set out my conclusions below by considering each allegation and then applying the relevant law for both provisions.

[122]These provisions require different legal tests to be applied. Unlike a direct race discrimination claim under Section 13 of the EqA, pregnancy discrimination does not require any comparison with another person’s treatment who is not pregnant and the treatment must be unfavourable, rather than less favourable.

[123]Section 18 of the Equality Act 2010 (“the EqA”) provides: (2) A person(a) (A) discriminates against a woman if, in [or after] the protected period in relation to a pregnancy of hers, A treats her unfavourably – (a) because of the pregnancy, or

(b) because of illness suffered by her [in that protected period as a result of her pregnancy] (6) The protected period, in relation to a woman’s pregnancy, begins when the pregnancy begins and ends – (a) if she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy. …

[124]The protected period for Section 18(2) of the EqA ended when the Claimant returned to work on 16th December 2023.

[125]Section 13 of the EqA deals with direct discrimination. It provides that: 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.

[126]The protected characteristic in this section 13 claim is race.

[127]Section 136 of the EqA provides the reverse burden of proof provisions. It provides that: (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person(a) (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. 24 The application of those principles was summarised by the Employment Appeal Tribunal in London Borough of Islington v Ladele (Liberty intervening)

EAT/0453/08

, which has since been upheld: (a) In every case the Employment Tribunal has to determine the reason why the Claimant was treated as he was: Igen v Wong

[2005] IRLR 258

, CA. In most cases this will call for some consideration of the mental processes (conscious or subconscious) of the alleged discriminator.

(b) If the Employment Tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial.

(c) Direct evidence of discrimination is rare and Employment Tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC). The first stage places a burden on the claimant to establish a prima facie case of discrimination. That requires the claimant to prove facts from which inferences could be drawn that the employer has treated them less favourably on the prohibited ground. If the claimant proves such facts then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground. If they fail to establish that, the Tribunal must find that there is discrimination: Igen. The wording in s136 of the EqA has not changed the way the burden of proof operates – the claimant still has to show a prima facie case of discrimination: Efobi v Royal Mail Group Ltd

[2019] EWCA Civ 18

(d) The explanation for the less favourable treatment does not have to be a reasonable one: Zafar v Glasgow City council

[1998] IRLR 36

HL. In the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: Bahl v Law Society

[2004] IRLR 799

, CA. If the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn. The inference is then drawn not from the unreasonable treatment itself - or at least not simply from that fact - but from the failure to provide a non-discriminatory explanation for it. But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, the burden is discharged at the second stage, however unreasonable the treatment.

(e) It is not necessary in every case for an Employment Tribunal to go through the two-stage process. In some cases it may be appropriate simply to focus on the reason given by the employer (“the reason why”) and, if the Tribunal is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test. The employee is not prejudiced by that approach, but the employer may be, because the Employment Tribunal is acting on the assumption that the first hurdle has been crossed by the employee: Brown v London Borough of Croydon

[2007] IRLR 259

, CA.

(f) It is incumbent on an Employment Tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: Anya v University of Oxford

[2001] IRLR 377

, CA.

(g) It is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated. The determination of the comparator depends upon the reason for the difference in treatment. The question whether the claimant has received less favourable treatment is often inextricably linked with the question why the claimant was treated as he was: Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

HL.

(h) However, as the EAT noted (in Ladele) although comparators may be of evidential value in determining the reason why the claimant was treated as he or she was, frequently they cast no useful light on that question at all. In some instances, comparators can be misleading because there will be unlawful discrimination where the prohibited ground contributes to an act or decision even though it is not the sole or principal reason for it. If the Employment Tribunal is able to conclude that the respondent would not have treated the comparator more favourably, then it is unnecessary to determine the characteristics of the statutory comparator: Watt (formerly Carter) v Ahsan

[2008] ICR 82

EAT.

(i) If the Employment Tribunal does identify a comparator for the purpose of determining whether there has been less favourable treatment, comparisons between the two people must be such that the relevant circumstances are the same or not materially different. The Tribunal must be astute in determining what factors are so relevant to the treatment of the claimant that they must also be present in the real or hypothetical comparator in order that the comparison which is to be made will be a fair and proper comparison. Often, but not always, these will be matters which will have been in the mind of the person doing the treatment when relevant decisions were made. The comparator will often be hypothetical, and that when dealing with a complaint of direct discrimination it can sometimes be more helpful to proceed to considering the reason for the treatment (the “reason why” question): Shamoon. Issue 20.2.1 & 21.1.1: On 16 December 2023 Grace Solomon and Kevin Osagie sent the Claimant home and told her to use up her annual leave (180 the Claimant never returned;

[128]From my findings at paragraphs 51 and 52 above, I do not accept that either Mr Osagie or Miss Solomon required the Claimant to use her annual leave as alleged. I have found, on the balance of probabilities, that it was the Claimant who suggested using her annual leave and she did so by sending the Holiday Request Email to Mr Osagie and Miss Solomon. I considered it noteworthy that there was no complaint whatsoever contained within the Holiday Request Form about this matter. If, as the Claimant suggests, this was forced upon her at the meeting I find it inconceivable that she would not have complained about it in an email that she drafted and sent during that meeting. In addition, there is no reference to this complaint in the Second Grievance, which she drafted around 2 months later. Again, I consider this omission to be telling.

[129]The Claimant has failed to establish the factual basis for this allegation, meaning that Section 136 of the EqA is not applicable. Without being able to establish the unfavourable or less favourable treatment alleged, these claims fail. Issue 20.2.2 & 21.1.2: Failed to pay the Claimant for the period 18th - 23rd December 2023 (having said they would give the Claimant an advance and then subsequently recovering it)

[130]From the findings, I have concluded that the Claimant was not paid for the period between 18th and 23rd December 2023, at that time. However, as she accepted in evidence, she was subsequently paid for this period on or around 27th December 2023. I have accepted the evidence Mr Murray that the reason why this occurred was because of an issue with the Claimant’s return to work not being recorded accurately at the time of her return. This was consistent with Mr Osagie’s and the Claimant's evidence that Mr Osagie encountered problems accessing the Respondent’s IT systems.

[131]I do not consider that this failure to make payment at the relevant time was because of pregnancy or because of the Claimant’s race. It was a technical issue relating to software issues. These allegations fail. Issue 20.2.3 and 21.1.3: Failed to grant the Claimant’s email requests for flexible working made in the period following 16 December 2023 while she was using her leave;

[132]I have made findings in relation to this allegation in paragraphs 100 – 104 above. From those findings, I do not consider there are facts from which, absent any explanation, would allow me to conclude that discrimination had occurred. This relates both to pregnancy discrimination and race discrimination. The reason this occurred was not because of any discrimination, but due to an oversight by Mr Osagie. Issues 20.2.4 & 21.1.4: Kevin Osagie and HR failed to grant the Claimant’s request for access to the system to look for redeployment in the same period or at all up to October 2024;

[133]The allegation at 21.1.4 is very similar although it adds Grace Solomon and extends the date up to December 2024. My findings below cover both allegations.

[134]Mr Osagie gave evidence, which I accepted, that he attempted to resolve the issue of the Claimant’s inability to access Success Factors with IT, when she was present during the meeting on 16th December 2023. He was informed that this was a password related issue that the Claimant had to resolve either through the app itself or with IT’s assistance. Mr Osagie provided the Claimant with IT’s contact details. Miss Solomon also provided the Claimant with IT’s contact details. I was satisfied that it was the Claimant’s failure to resolve the matter that prevented her from looking for redeployment through the app during this period, not because of any discrimination.

[135]This element of the claim fails. Issues 20.2.5 & 21.1.5: Failed to grant the Claimant’s request for a career break/sabbatical leave from 6 January 2024 to 7 January 2025;

[136]The uncontested evidence from Miss Solomon was that Mr Watson rejected the Claimant’s application for a career break/sabbatical because she was already absent, initially due to accrued annual leave until early February and then with a mixture of sickness and unauthorised absence. The evidence did not suggest that this decision was in any way tainted by discrimination. In any event, the Claimant did achieve absence for this period, as set out in my findings above, so there would be no less favourable or unfavourable treatment arising from the failure to provide this leave because it was provided.

[137]This element of the claim fails. Issues 20.2.6 & 21.1.6: Failed to allow a return at the end of her annual leave in February 2024, leaving the Claimant unpaid until September 2024. The Claimant relies on HMRC documentation showing no payroll activity during this period;

[138]From my findings, the Claimant has failed to establish that she was prevented from returning (or failed to allow a return) to work at the end of her annual leave. The evidence was that the Respondent attempted to contact the Claimant to resolve the situation, but the Claimant did not engage appropriately. The reason for this state of affairs was the Claimant’s refusal to attend a further OH assessment or to discuss the earlier OH report. Attempts were made by the Respondent to maintain regular contact with the Claimant but she objected and frustrated matters. The reason for her failure to return was due to her own behaviour and not because of pregnancy or race. In terms of the complaint of being unpaid, the Respondent attempted to place the Claimant on sick leave but she objected, asking to remain on unpaid special leave.

[139]I have commented that the Claimant’s failure to engage and being absent from work was consistent with her application for a career break. Issues 20.2.7 & 21.1.7: In October 2024 Grace Solomon sent log in instructions to the internal system which did not work

[140]This allegation is consistent with the prior allegations of 20.2.4 & 21.1.4 above.

[141]From the evidence, I found that Miss Solomon provided IT contact details to the Claimant in October 2024 but the reason the Claimant could not access the relevant system was due to the Claimant’s failure to resolve the password issue.

[142]I do not consider that this issue was because of pregnancy or because of the Claimant’s race. These allegations fail. Disability Discrimination - Reasonable Adjustments

[143]Whilst disability was listed as an issue to be determined, at the outset of the hearing the Respondent confirmed that it accepted that the Claimant was a disabled person within the meaning of the EqA by virtue of(i) anxiety and stress and

(ii) back pain. The Respondent disputed that it had knowledge of the Claimant’s back pain until it received the OH Report dated 6th March 2024.

[144]Section 20(3) of the EqA provides: An employer (A) is under a duty to make reasonable adjustments: …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.

[145]Section 21 of the EqA 2010 provides that a failure to comply with the duty to make reasonable adjustments amounts to discrimination.

[146]For both claims, the Claimant bears the burden of proof, subject to the possible application of section 136 of the EqA, as set out above.

[147]The Tribunal must consider whether the duty to make reasonable adjustments has in fact crystallised as a matter of fact. This may require consideration of whether the employee was fit enough or otherwise able to return to work with adjustments. In the Court of Appeal in The Home Office v Elaine Collins

[2005] EWCA Civ 598

, where reasonable adjustments were sought with reference to Disability Discrimination Act 1995 (the precursor to the Equality Act 2010) it was held that it was reasonable for the employer not to implement the adjustments sought of a phased return to part-time work until the employee could indicate a definite date for her return to work. It was also noted that the employee was medically certified as unfit to return to work prior to her dismissal. Collins was followed by the Scottish Employment Appeal Tribunal (authority that is not binding but is persuasive in its reasoning) in Doran v Department for Work and Pensions

UKEATS/0017/14/SM

[148]It is clear on the face of the language of s.20 of EqA that the duty to make reasonable adjustments is not an absolute duty but is a duty to take such steps as are reasonable and only to take steps to avoid a disadvantage.

[149]The Respondent accepted that the Claimant was a disabled person in respect of(i) anxiety and stress and

(ii) back pain. There was no evidence before me that suggested that the Respondent could reasonably have had knowledge of the Claimant’s back disability until receipt of the OH report dated 6th March 2024. It was agreed that the Respondent was aware of the Claimant’s anxiety and stress from the First Grievance in June 2023.

[150]I accept that the PCP contended by the Claimant as set out in paragraph 22.2.1, namely the requirement for her to carry out her normal contractual duty, was applied by the Respondent to the Claimant. The contractual duty being to carry out the duties of an Operational Grade Postwoman working shifts for 25 hours per week.

[151]The Claimant suggested that the Respondent could have:-151.1 reduced her working hours after 28th November 2023.

151.2 provided an alternative role from 28th November 2023.

151.3 allowed hybrid or remote working.

151.4 allowed a phased return to work as recommended by the OH Report.

[152]The Respondent accepted that it failed to take the steps contended by the Claimant. The next question is whether the PCP put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that the Claimant could not carry out the role due to her anxiety and stress and/or back pain? If so, was it reasonable for the Respondent to have to take those steps.

[153]The steps suggested by the Claimant were reasonable in themselves although there was no evidence led by the Claimant as to why hybrid/remote working or a phased return to work may have assisted her. Her evidence focused upon a reduction in hours (she wanted to work 8 hours on a Saturday) and an alternative role.

[154]The evidence before the Tribunal was that the Claimant wanted a reduction in hours because of childcare issues. She raised this several times and this appeared to be her prime motivation for refusing to return to her normal duties on 16th December 2023 but also requested a move into a different role because she could not move yorks.

[155]The Respondent’s case was that this was the first time it was aware of any issue and it could not make any decisions at this point because it needed input from OH Report. However, if the issue related to moving yorks, it has significant numbers of employees with mobility issues who still carry out the main duties and others can be relied upon to move heavy yorks. This is a standard adjustment that operates within the workforce and was already in place. The Respondent could not offer hybrid or remote working in relation to the Claimant’s role and she was never in a position to return to work for it consider reasonable adjustments and a phased return. It was therefore not reasonable for it to take these steps in all the circumstances of this matter.

[156]I consider that it was not reasonable for the Respondent to take any of these steps until it had received input via the OH Report. From this point onwards, it took reasonable steps to engage with the Claimant but she failed to do so appropriately. It was never able to discuss matters with the Claimant about the OH Report and later on, when it sought an updated report, the Claimant refused to attend an assessment. At no point did the Claimant confirm she was in a position to return to work. Indeed, the evidence confirms that she was not looking to return to work at any point prior to her resignation, unless she returned into an 8 hour role on a Saturday within the Caller’s Office. The uncontested evidence from Mr Osagie was that this role was removed in early 2024 in any event.

[157]From the evidence, I consider that the Claimant was not willing to return to work. Her motivation was to remain absent, either through annual leave or unpaid leave. Every step taken by the Respondent to engage with her was frustrated by the Claimant. These are not the actions of an employee who is willing or able to return to work. Whilst this situation is not on all fours with Collins, the issue is similar in that the Claimant never indicated to the Respondent that she was in a position to return to work and needed the requirements to do so. I do not consider that it was reasonable for the Respondent to make these adjustments.

[158]This claim fails. Victimisation

[159]Section 27 of the EqA (as adjusted) provides: An employer victimises another person (B) if it subjects B to a detriment because B does a protected act or believes that B has done, or may do, a protected act.

[160]The Claimant relied upon the First and Second Grievance as the protected acts relied upon and the Respondent accepted that these were protected acts. It denied that the detriments relied upon by the Claimant were caused by the protected acts.

[161]The test for detriment in victimisation cases is the same as in other discrimination cases, namely, “Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?” Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

. Issue 23.1.2.1: Grace Solomon and Kevin Osagie ignoring the Claimant’s informal flexible working request on 28 November 2023

[162]I have accepted the evidence from Mr Osagie and Miss Solomon that they had no knowledge of the Claimant’s First Grievance. Without being able to establish Mr Osagie and/or Miss Solomon were aware of the First Grievance, the Claimant is unable to establish that the reason for her treatment was because she raised it. This means that her complaints which rely solely upon the First Grievance fail. This allegation relates to the Claimant’s request on 28th November 2023 and relies upon the First Grievance. It fails for the reason given above.

[163]In any event, I found that the reasons for this failure at this time was due to Mr Osagie’s workload and an administrative failing on his part, unrelated to any discrimination and victimisation.

[164]I also accepted Mr Osagie’s evidence that he was not aware of the Second Grievance prior to these proceedings. Miss Solomon confirmed that she was aware of the Second Grievance soon after it was raised with the Respondent. The Second Grievance was dated 20th February 2024 and there was no evidence led by the Claimant that suggested that either Mr Osagie or Miss Solomon believed, prior to her raising the Second Grievance, that she would do so. This means that any events that occurred prior to 20th February 2024 could not be because of the Second Grievance. Issue 23.1.2.2: On 16 December 2023 Kevin Osagie/HR denial of access to internal job systems and job vacancies

[165]For the same reason as set out in paragraph 162 above, this element of the claim fails.

[166]However, on the findings of fact above, I would not have found that the reason for this treatment was because of the Claimant raising a protected act. The reason for this incident was simply due to Mr Osagie’s inability to access the IT system at the time. Issue 23.1.2.3: In January 2024 HR rejecting an informal request for flexible working

[167]For the same reason as set out in paragraph 162 above, this element of the claim fails.

[168]From the findings of fact and as set out in response to the allegations at 20.2.3 and 21.1.3, I would not have found that the reason for this treatment was because the Claimant raised a protected act. Issue 23.1.2.4: Failure to pay wages from 18-22 December 2023

[169]For the same reason as set out in paragraph 162 above, this element of the claim fails.

[170]From the findings of fact and as set out in response to the allegations at 20.2.2 & 21.1.2, I would not have found that the reason for this treatment was because of the Claimant raising a protected act. Issue 23.1.2.5: Management and HR delayed response to the Claimant’s Second Grievance in March 2024

[171]Miss Solomon was clearly aware of the Second Grievance because she was tasked with responding to it.

[172]From the findings I have made, I consider that the Respondent did response to the Second Grievance as far as it reasonably could in the absence of appropriate engagement from the Claimant. Miss Solomon arranged for an OH referral and responded via her letter of 15th March 2024. This letter dealt with the issues raised. It follows that I do not accept that the Respondent delayed any respond to the Second Grievance.

[173]The element of the claim fails. Issue 23.1.2.6: Sue Lester delayed in dealing with the Claimant’s Grievance on 12th January 2024

[174]For the same reason as set out in paragraph 162 above, there was no evidence before me that Sue Lester was aware of the First Grievance. This element of the claim fails.

[175]However, from the evidence this allegation also fails. Mrs Lester was not dealing with the First Grievance and the Claimant hadn’t presented the Second Grievance at this time. Mrs Lester took 6 minutes to respond to the Claimant’s email and signposted her in the appropriate direction. I do not accept that responding within 6 minutes can reasonably considered a delay and factual basis for this allegation is not substantiated. Issue 23.1.2.7: Grace Solomon failed to implement OH recommendations in March 2024

[176]From my findings, I consider the reason for the failure to implement the OH recommendations was because of the Claimant’s failure to engage with the Respondent. It was not because of the Second Grievance, which Miss Solomon was addressing.

[177]This element of the claim fails. Unauthorised Deductions

[178]Section 13(1) of the ERA provides: An employer shall not make a deduction from wages of a worker employed by him unless-(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b) the worker had previously signified in writing his agreement or consent to the making of the deduction.

[179]Section 14(1) of the ERA provides: Section 13 does not apply to a deduction from a worker’s wages made by his employer where the purpose of the deduction is the reimbursement of the employer in respect of –(a) An overpayment of wages, or

(b) An overpayment in respect of expenses incurred by the worker in carrying out his employment, made (for any reason) by the employer to the worker.

[180]The net effect of these provisions is that Section 13 of the ERA prevents unlawful deductions being made from an employee’s salary or wages, one of the conditions in Section 13(1)(a) or 13(1)(b) are met.

[181]The Claimant complained that the Respondent had made unlawful deductions from her salary, arising out of two incidents.

[182]The first arose in its failure to pay salary between 18th December and 22nd December 2023. From my findings, the Respondent resolved this issue in January 2024 by making the relevant payments. This was accepted by the Claimant.

[183]The second incident arose after the Claimant’s employment ended, as detailed in paragraph 91 above. In essence, the Respondent had failed to record the Claimant’s end date of employment in a timely manner, leading the Claimant to receive pay for a period when she was not working and was not entitled to receive pay. I accepted the evidence from Mr Murray and was satisfied that this money related to an overpayment of salary.

[184]The Respondent attempted to rely upon the Claimant’s contract which it asserted contained a clause (i) permitting the deduction; and (ii) the worker has previously signified in writing their agreement to the making of the deduction.

[185]Clause 23.1 of the Claimant’s Contract stated (page 191): You agree that Royal Mail may at any time deduct from your salary or any other benefit payable to you any sum including any overpayment of salary or loan made to you by Royal Mail or any deductions arising from disciplinary action (including deductions resulting from a reduction in pay, downgrading or disciplinary transfers) which in the reasonable opinion of Royal Mail is owing by you to it whether by reason of any default on your part or otherwise at the time of such deduction is made.

[186]On the face of it, this clause met the condition of Section 13(1)(b) containing a consent to the deduction from wages. However, the Contract set out in the trial bundle was not signed by the Claimant and the Respondent was unable to adduce a signed version of the Contract. Therefore, the conditions in Section 13(1)(b) were not met.

[187]In the alternative, the Respondent relied upon Section 14(1) of the ERA which permits a deduction which has arisen because of an overpayment of wages. As indicated above, I was satisfied that this deduction related to an overpayment of salary and the Respondent was entitled to make this deduction.

[188]This claim fails. Time Limit

[189]At the outset of the hearing, the Respondent accepted that issues complained of by the Claimant were all properly to be considered as a course of conduct by the Respondent. It followed from this concession that all of the Claimant’s claim were raised within the relevant time periods and it did not raise this as an issue.

[190]I reviewed the time limit points and agreed with the Respondent’s view that all of the claims raised by the Claimant were all part of a course of conduct and no time limit issues arose.

[191]It follows from all of the findings and conclusions above that all of the Claimant’s claims fail and are dismissed.