Miss Tyrell v Secretary of State for Justice: 2304472/2023
EMPLOYMENT TRIBUNALS
Case No 2304472/2023
Between
Miss TyrellClaimantSecretary of State for JusticeRespondent
Before
Employment Judge Hart, Ms Thompson and Ms WhitlamRepresenting herself for claimantMr Kirk (instructed by Counsel) for respondentDate 16 May 2025
JUDGMENT
[1]The complaints of direct disability discrimination are not well-founded and are dismissed.[2]The complaint that being issued with a first written warning on 9 March 2023 (backdated to December 2022) was unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed.[3]The complaint that being issued with a final written warning on 19 October 2023 was unfavourable treatment because of something arising in consequence of disability is well-founded and succeeds. 3 The complaints of failure to make reasonable adjustments for disability are not well-founded and are dismissed. Case No. 2304472/2023 This Judgment has been approved by:
REASONS
[1]Ms Tyrell (the claimant) commenced employment with the respondent on a full time contract on 1 June 2020. She remains employed by the respondent. She is disabled due to the conditions of anxiety and depression and long Covid.[2]Following the liability hearing on 10 to 14 March 2025, Ms Tyrell succeeded in her complaint that being issued with a final written warning on 18 October 2023 was unfavourable treatment because of something arising in consequence of disability. Her other complaints of disability discrimination did not succeed. The unanimous judgment and reasons were given orally at the end of the hearing. A remedy hearing was listed for 3 April 2025.
THE HEARING
[3]The remedy hearing was conducted as a hybrid hearing. The panel attended in person and the parties attended by CVP. The claimant represented herself and the respondent was represented by Mr Kirk (counsel). They are both thanked for their assistance and representation during the hearing.[4]We were provided with the following documents, of which relevant to the strike out decision were:(1) A joint agreed bundle of 807 pages, the references to page numbers in this judgment are to the pages in this bundle.(2) A witness statement from Ms Tyrell on injury to health, injury to feeling and financial loss.[5]Ms Tyrell gave evidence on her own behalf and was cross examined.[6]On completion of the evidence both parties provided oral submissions. Remedy Judgment was reserved. The panel met in chambers on 6 and 12 May 2025. For reasons set out in the case management order (provided to the parties separately) we have decided to postpone finalising and announcing our judgment and reasons on injury to feeling and financial loss until we have considered the evidence on personal injury.
BACKGROUND
[7]In the claim form Ms Tyrell claimed that the treatment by her employer had ‘exacerbated my mental health and COVID ailments’. The claim form pre-dated the final written warning. At a case management hearing on the 10 April 2024 Ms Tyrell applied to amend her claim to add a complaint of discrimination arising out of disability in relation to the issue of the final written warning. In its amended response dated 8 May 2024 the respondent did not object to the amendment: pg 73. It appears from the Tribunal’s internal file that the Tribunal failed to deal with this matter on the papers and formally agree the amendment. However, it was not an issue in dispute before us, and the parties confirmed the issues to be determined at the beginning of the liability hearing, which included the complaint in relation to the final written warning.[8]In her schedule of loss dated 30 April 2024, Ms Tyrell identified that the amount of damages for personal injury that she was claiming was £15,200 which in the JSB Guidelines falls in the ‘moderately severe psychiatric damage’ band. This amount was being claimed in relation to all her complaints, not just the issue of the final written warning. In addition, she was claiming loss of earnings due to her ill health (which she said was caused by the respondent’s discriminatory conduct).[9]At the commencement of this hearing Ms Tyrell confirmed that she was still pursing damages for personal injury. The Tribunal proposed, and the parties agreed, to proceed with a split remedy hearing with personal injury being considered at a separate hearing.[10]The respondent applied to strike out the claim for personal injury or alternatively for a deposit order on the grounds that this head of loss had no or little reasonable prospect of success, respectively. This was considered at the end of the hearing, and therefore we have had the benefit of hearing evidence before determining. FINDINGS OF FACTS[11]The following findings of facts are unanimous. We have only made findings of fact in relation to those matters relevant and necessary to determine the strike out and deposit order applications.[12]It was not disputed that Ms Tyrell had the pre-existing conditions of anxiety and depression (from around July 2021, if not before) and long covid (since November 2022).[13]On 17 July 2023 Ms Tyrell permanently applied to reduce her hours of work from 5 days pw to 4 days pw: pg 289-293. The reason for this application was to manage Ms Tyrell’s two health conditions. The application was supported on health grounds by Occupational Health (OH) and her GP: pg 140-142, 147. On 17 August 2023 the respondent had agreed this application, but Ms Tyrell did not proceed with it ‘at this time’ because her additional request to remove weekend working had not been agreed: pg 319-322.[14]On 17 August 2023 Ms Tyrell started the long Covid Functional Restoration Programme run by the respondent’s OH providers: pg 148. The programme comprised of 8 sessions and it was reported that: ‘Everyone's progression and recovery from Long Covid is different and therefore their timely return to work or return to full duties, depends on their disease severity and recovery. Recovery following this programme is not necessarily completed and it is anticipated recovery progression will occur over the next 3-6 months (in some cases longer up to 12 months) and there may be periods of disease fluctuation.’[15]On 18 August 2023 Ms Tyrell was signed off work (49 days) with ‘work related stress’: pg 323. The GP notes for August and September 2023 record a number of discussions with Ms Tyrell about her anxiety and depression and concern about her dependency on zopiclone: pg 164-166.[16]On 9 October 2023 (until 22 January 2024) Ms Tyrell commenced a 15 week phased return to work, starting on 2 days pw gradually building up to 3 days pw from 4 December 2023, building up to 4 days pw from 8 January 2024 and 5 days pw on from 22 January 2024: pg 349-350, 351-352.[17]On 18 October 2023 Ms Tyrell was issued with a final written improvement notice to remain in place for 3 months effective from the 6 October 2023 followed by a 12 month sustained improvement period (which could result in her demotion or dismissal if the trigger points were exceeded during this period) (“final written warning”). This was because her absences had reached the adjusted trigger point: pg 323-331. We have found that the warning was an act of discrimination arising out of disability for the reasons provided orally at the liability hearing. Ms Tyrell stated in evidence at the remedy hearing that the final written warning ‘caused a serious and prolonged deterioration in my health. I experienced heightened anxiety, depression, and a worsening of Long Covid symptoms….. I was prescribed daily Mirtazapine (45mg), Zopiclone (7.5mg), and Trazodone (100mg), alongside codeine-based pain relief and other medication for associated physical symptoms. I have remained on these medications consistently since 2023.’ Ms Tyrell accepted that she had been prescribed with these medications prior to the final written warning, but stated that Mirtazapine was prescribed at lower dose of 30mg and that Zopiclone was to be taken alternative days, not ‘every day’ and has done for the ‘past 17 months’. She further stated that prior to the warning she had not been dependent on them to get her to sleep.[18]On 20 October 2023 Ms Tyrell had a consultation with her GP in relation to a viral disease (Covid), following a consultation with the long Covid specialist the previous day: pg 163. The GP notes after this entry appear to be missing until 12 January 2024. The GP notes for January to April 2024 record no further consultations or medication reviews, the only significant entry is 9 April 2024 for another Covid episode. We were not provided with the GP notes for the rest of the year 2024 or 2025: pg 160-161. The GP medication printout record that between 5 October 2023 and 19 February 2025 Ms Tyrell was prescribed Zopiclone (7.5mg), 14 or 28 tablets at a time ‘one to be taken at night when required’: pg 807. Between 9 January 2024 and 18 February 2025 Ms Tyrell was prescribed Mirtazapine (30 mg), 28 tablets at a time ‘one to be taken at night’: pg 806. On 19 February 2025 the dosage was increased to 45mg and Ms Tyrell was prescribed with 56 tablets.[19]The OH reports dated 1 November 2023 and 9 April 2024 refer to Ms Tyrell suffering from severe anxiety and depressive symptoms, but do not refer to the final written warning as a contributory factor to her continuing ill health: pgs 722 and 158 respectively. The November 2023 report referred to workload as being a ‘major contributing factor' and the April 2024 report recommended working from home and a closer office location in order to reduce the ‘energy drain’ that Ms Tyrell was suffering from longer commutes.[20]On 27 November 2023 Ms Tyrell commenced working as Operations Manager for Mr Cahill’s team. This was on the same job description but a different team and line manager and a pan-London role instead of a regional role. This transfer followed the partial upholding of Ms Tyrell’s grievance in relation to the workload associated with the demands of the regional role and a recommendation that an alternative role be considered.[21]On 22 January 2023, at the end of her phased return to work, Ms Tyrell requested that she temporarily work 3 days pw. It was agreed that her phased return to work would be extended by 6 weeks which would enable her to remain on full pay: pg 348.[22]On 5 February 2024, Ms Scott, Occupational Therapist, Kings College Hospital Post Covid Vocational Service (Ms Tyrell having been referred to this service and assessed on 28 November 2023) wrote: pg 156 ‘As you are aware, Tajae’s [Ms Tyrell’s] role has changed from previously covering south east London (3 local boroughs to her home), to taking on a wider catchment area of pan London. This requires her to travel a further distance to attend appointments, and she has had a number of additional issues with technology (either the work laptop or her work phone has not been working correctly) and environment (her nearest office in Lewisham is not set up but would be ideal as a base office whereas the Bromley office requires further travel and therefore exacerbates her fatigue which in terms of limited energy capacity is to be minimised or reduced/avoided). Tajae has reported that she is currently on a final notice period at work due to her sickness absence or ability to complete satisfactory duties, is this correct? Long covid is considered an illness that is considered a stress response in the body due to inflammation and dysregulation within the body in a number of systems. Therefore the patient needs to be able to re- regulate these systems through active relaxation and grading of rest and activity. Increased stress can trigger increased dysregulation and inflammation. I am aware that Tajae is highly anxious that she believes she is working a final notice period, please can you clarify whether Tajae is on a final notice period? I would value the opportunity to schedule an online meeting with Tajae and her manager to discuss the above to support Tajae and yourselves in managing her long covid at work and considering reasonable adjustments in terms of her chronic symptoms. I reviewed her on the 17th of January 2024 and although she had a break and rest from her role, it is clear that Tajae unfortunately has experienced a new episode of covid and has had some environmental challenges at home which has exacerbated some of the symptoms, particularly fatigue.’[23]On 25 March 2024, following expiry of the extended phased return to work, the respondent agreed Ms Tyrell’s formal request for a temporary reduction in working hours to 3 days per week: pg 349, 351-352. This should have reduced her pay from full pay to 3 days pw, but due to an error her pay was not reduced until August 2024. The respondent did not seek to recover this overpayment. On 29 July 2024 the respondent agreed to Ms Tyrell’s application to permanently reduce her hours of work to 3 days per week (0.6FTE) to commence on 1 August 2024: pg 353-354. It was not disputed that the reason why Ms Tyrell requested reduction in her hours was due to her health conditions.[24]It was not disputed that Ms Tyrell’s recorded sickness absence had improved following the final written warning. Ms Tyrell took annual leave in order to mask short periods of sickness for example on 1 July 2024, 1 August 2024 and 16 September.[25]On 22 October 2024 Ms Tyrell was signed off sick with Covid for 39 days, which was recorded as sickness absence: pg 698. Between 15 to 29 November 2024 Ms Tyrell was signed off work for anxiety and depression, which again was recorded as sickness absence.
THE LAW
[26]The Employment Tribunals Procedure Rules 2024 (Tribunal Rules), rule 38 (Strike Out Order) provides that ‘(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds: (a) that it is scandalous or vexatious or has no reasonable prospect of success….”[27]Striking out a claim is a draconian option and should only be used as a last resort, where there is no other option available: Anyanwu v South Bank Students’ Union and South Bank University [2001] IRLR 305 and Ezsias v North Glamorgan NHS Trust [2007] ICR 1126. The respondent accepted that these principles still applied at the remedy stage. The approach to be adopted was summarized in Mechkarov v Citibank NA [2016] ICR 1121 (EAT):(1) only in the clearest case should claim be struck out;(2) the claimant’s case must ordinarily be taken at its highest;(3) if the claimant’s case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents it may be struck out; and(4) a tribunal should not conduct an impromptu mini trial of all evidence to resolve core disputed facts. It would, however, be wrong in principle to allow an apparently hopeless case to proceed to a hearing in the hope that “something may turn up” in cross examination: Patel v Lloyds Pharmacy Ltd (UKEAT/0418/12).
DISCUSSION AND CONCLUSIONS
[28]We did not agree that Ms Tyrell’s claim for personal injury arising out of the proven act of discrimination (the final written warning) should be struck out or subject to a deposit order on the grounds that it had no or little reasonable prospect of success, respectively.[29]Ms Tyrell had always pleaded personal injury as a head of loss and it should only be in the clearest of cases that a claim or part of a claim should be struck out. We did not consider that this was a case where the claimant’s evidence was conclusively disproved by undisputed contemporaneous documentation. The medical evidence provided to us was mixed. Based on the evidence provided, we accepted that the medication records did not appear to support Ms Tyrell’s evidence that there was an increase in her medication over the 15– 17-month period following the issue of the final written warning. Further we accepted that there was a lack of any reference to the final written warning causing anxiety and stress in the GP notes and OH reports. We also accept that the level of recorded sickness absence had significantly reduced over the period of the warning. However, there was also contrary evidence. The OH report on the functional restoration programme dated 17 August 2023 anticipated that Ms Tyrell would recover from long COVID in 3-6 months (up to 12 months). There was evidence before us that Ms Tyrell’s health did not recover within this period and this raises a question as to why her recovery has taken longer than anticipated prior to the final written warning. Further the KCH letter dated 5 February 2024 records Ms Tyrell being ‘highly anxious’ about the final written warning and stated that ‘Long covid is considered an illness that is considered a stress response in the body due to inflammation and dysregulation’ and that ‘increased stress can trigger increase deregulation and inflammation’. Although written in cautious terms, this letter nevertheless suggests a real possibility that the final written warning was a causal factor in Ms Tyrell’s continued ill health.[30]We also accept that there is evidence that there were other factors that may have impacted on Ms Tyrell’s ill-health over this period of time: high workload (OH report November 2023), a change in role and increased travel (KCH report, OH report April 2024), technology associated with the new role (KCH report) and environmental challenges at home (KCH report). On the other hand there were factors that arguably should have helped improve her ill-health over this period including attending the functional restoration programme for long Covid, being referred to the KCH post covid vocational service, reducing her hours of work to 3 days pw, moving to a different team and a different role (albeit the same job description).[31]Therefore, the medical and other evidence is not clear cut. We do not accept that Ms Tyrell’s oral evidence is undermined by all the contemporaneous documentary evidence. This is a long way from an apparently hopeless case where it is hoped that ‘something may turn up in cross-examination’. Rather this is a head of loss that concerns complex questions of medical prognosis and causation, requiring expert medical evidence to determine.[32]Accordingly, the respondent’s application for a strike out order and / or deposit order is refused. This Judgment has been approved by: