Ms S Moorcroft v SHC Clemsfold Group Ltd: 2304931/2019

EMPLOYMENT TRIBUNALS

Case No 2304931/2019

Between

Ms S MoorcroftClaimant

SHC Clemsfold Group LtdRespondent

Before

Employment Judge Street

Mr Williams (instructed by solicitor) for respondent

Date 16 June 2021

JUDGMENT

The claimant succeeds in her claim in respect of unfair constructive dismissal, wrongful dismissal, discrimination arising from disability, failure to make reasonable adjustments and harassment related to disability. The claims of direct discrimination because of disability, indirect discrimination and victimisation are dismissed. The Remedy hearing is listed for 12 July 2021 at 10.00 by Cloud Video Platform.

REASONS

[1]Evidence 1.1. The Tribunal heard from the claimant and from Ms L Fehilly, Director of Human Resources (“HR”). The Tribunal was provided with a bundle of 775 pages with additional documents produced on the second day of the hearing, and read the pages referred to by the parties.

[2]Issues 2.1. The claimant claims unfair constructive dismissal, wrongful dismissal and disability discrimination. 2.2. The issues before the Tribunal to decide are as follows. This is the list provided by Mr Henman, albeit not agreed, as adjusted by consent (as explained below) and put in broadly date order. Jurisdictional Issues

[1]Are any or all of the Claimant’s claims for disability discrimination out of time?

[2]If so, do the allegations made by the Claimant amount to an act extending over a period of time so as to bring the Claimant’s claims in time?

[3]If any of the Claimant’s claims for disability discrimination are out of time, would it be just and equitable to extend the time limit for submitting such claims? Constructive Unfair Dismissal- s.95 Employment Rights Act 1996

[4]Can the Claimant establish that her resignation should be construed as a dismissal in circumstances in which she is entitled to terminate her employment without notice by reason of the employer’s conduct:a. Did the Respondent commit a breach of contract or of the implied term of trust and confidence through one or more of the following alleged matters, taken individually or cumulatively: i. Suspending the Claimant for more than two weeks counter to the guidance in the Respondents disciplinary policy; ii. Failing to conduct a full and proper investigation in a disciplinary process resulting in omitting information that should have been provided to the Claimant; iii. Failing to take the Claimant’s grievance letter of 16/05/19 seriously; iv. Failing to follow the Respondent’s grievance policy to investigate the Claimant’s grievance; v. Dismissively discussing the removal of the Claimant’s pin number and changing the Claimant’s role and duties while registered as nurse; vi. Unilaterally changing the Claimant’s contractual job function and salary without the Claimant’s consent whilst knowing that the Claimant will still have to fulfil her legal duties of care as a registered nurse; vii. The Respondent’s HR Department continuously breaching the Sickness and Absence policy when corresponding with the Claimant by misdescribing the purpose of the meetings and not offering to have any representation to attend or alternatively not correctly describing what representative could attend; viii. Threatening the Claimant in a meeting that procedures would be started to dismiss her if she did not return to work by 8/07/19; ix. Unilaterally relocating the Claimant without agreement or consent to a more distant and unfamiliar care home despite the concerns raised by the Clamant about how this would cause her further stress and such a move was contrary to the medical advice made by the Claimant’s doctor and Occupational health. x. By the Respondent moving the Claimant to a more distant and unfamiliar care home without consent or agreement thereby breaking the contractually established location of work maintained as a reasonable adjustment for the Claimants cancer disability; xi. The Respondent breaching the organisations own policies and procedures in relation to matters concerning disclosure and confidentiality and therefore breaching Data Protection legislation.

b. Were the Respondent’s breach or breaches of contract and/or the Respondent destroying the implied mutual trust and confidence the reasons for the Claimant’s resignation; and

c. Did the Claimant lose the right to resign by affirming the contract whether by delay or otherwise?

[5]If so, can the Respondent show a potentially fair reason for dismissing the Claimant? The Respondent relies on some other substantial reason, namely a breakdown in relationship.

[6]If so, was the dismissal fair or unfair in accordance with section 98(4) Employment Rights Act 1996? Wrongful Dismissal

[7]Did the Claimant resign without notice for just cause?

[8]If so, is the Claimant entitled to any notice pay from the Respondent?

[9]If so, how much notice pay is the Claimant entitled to? Disabled Person

[10]The conditions relied upon by the Claimant are:a. Breast cancer;

b. Anxiety; and

c. Depression.

[11]The Respondent accepts that the claimant is a disabled person at all material times by reason of those conditions in accordance with Section 6 Equality Act 2010 Knowledge

[12]In respect of conditions that would amount to a disability, did the Respondent make reasonably efforts to determine if the Claimant was a disabled person?

[13]Did the employer respond appropriately to the Claimant with a known disability when she asked for reasonable adjustments to be made that were practical and affordable to accommodate?

[14]In respect of any conditions that amount to a disability, can the Respondent show that it did not know and could not reasonably have been expected to have known that the Claimant was a disabled person? Direct Disability Discrimination- s.13 Equality Act 2010

[15]In respect of the claim for direct disability discrimination, the Claimant relies on the following acts or continuing series of Acts:a. The manner in which the investigation meeting on 24/09/2018 was conducted;

b. The Respondent inviting the Claimant, by letter dated 04/04/2019, to a ‘sickness Absence Review Meeting’ on 09/04/2019;

c. The Respondent inviting the Claimant by letter dated 14/05/2019 to a further ‘informal wellbeing meeting to discuss the current state of your diagnosed medical condition’ on 24/05/2019;

d. The Respondent’s HR Director (Ms Jones) writing in a letter dated 23/05/2019, in direct response to the Claimant’s grievance dated 16/05/2019, that matters raised would not be investigated as they were out of time and a second appeal was not permitted;

e. The Respondent asking the Claimant in a letter dated 23/05/2019 to attend a rescheduled wellness meeting on 30/05/2019;

f. The Respondent sending a letter to the Claimant dated 05/06/2019 that threatened the Claimant with a stage 3 Sickness Absence Hearing if the Claimant did not return to her work duties by Monday 08/07/2019 with a possible outcome being the termination of employment on the grounds of capability;

g. The Respondent in the same letter sent to the Claimant dated medical condition;

h. The Respondent removing a reasonable adjustment previously made for the Claimant’s disability in a meeting on 26/06/2019, by relocating the Claimant to a different and more distant care home;

i. In a meeting on 26/06/2019, the Respondent removing a reasonable adjustment previously made for the Claimant’s disability in relation to her working 24 hours per week over two 12-hour night shifts;

j. The Respondent ignoring a telephone notification by the Claimant on 27/06/2019 that her doctor was concerned about her change of location and this might be detrimental to the Claimant’s health;

k. The Respondent ignoring a telephone request by the Claimant on 27/06/2019 that she wanted to remain at Boldings Lodge as she had happily worked there for 10 years;

l. The Respondent on 27/06/2019 ignoring a telephone request made by the Claimant to consider an alternative move to Kingsmead Lodge as she car shares with her daughter and it is closer to home;

m. The Respondent disregarding a doctor’s letter dates 01/07/2019 regarding concerns about the change of location and the same being detrimental to the Claimant’s health;

n. The Respondent disregarding the recommendations and guidance from Occupational Health dated 03/07/2019 and failing to take onboard concerns about the Claimant’s change of location and this might be detrimental to the Claimant’s health;

o. The Respondent refusing to reconsider its position on relocating the Claimant and leaving her at Boldings Lodge as a reasonable adjustment requested by the Claimant;

p. The Respondent breaching staff confidentiality and data

q. Ms Jones acknowledging in a letter dated 24/07/2019 that one of the reasons the Claimant was being moved was because of the six witness statements (that did not relate to the Claimant);

r. Ms Jones advising in a letter dated 24/07/2019 that the Claimant was being moved location because “In our view it would be remiss of SHC to place you back at Boldings because of this [six

s. By the Respondent moving the Claimant to an unfamiliar care home thereby breaking the contractually established reasonable adjustments put in place in January 2018 for the Claimants disability;

t. Dismissing the Claimant.

[16]Are the facts alleged at 15 a. – o. above such that the Tribunal could conclude that the alleged conduct of the Respondent amounted to less favourable treatment of the Claimant because of disability than either a hypothetical comparator or an actual comparator (nurses at Boldings Lodge / Orchard Lodge / Ms Uju)?

[17]If so, can the Respondent nevertheless show that here was no contravention of Section 13 Equality Act 2010? Discrimination arising from disability- s.15 Equality Act 2010

[18]Did the Respondent treat the Claimant unfavourably in any of the following ways as alleged?a. The manner in which the investigation meeting on 24/09/2018 was conducted;

b. The Respondent inviting the Claimant, by letter dated 04/04/2019, to a ‘sickness review meeting’ on 09/04/2019;

c. The Respondent inviting the Claimant by letter dated 14/05/2019 to a further ‘informal wellbeing meeting to discuss the current state of your diagnosed medical condition’ on 24/05/2019;

d. The Respondent asking the Claimant in a letter dated 23/05/2019 to attend a rescheduled wellness meeting on 30/05/2019;

e. The Respondent sending a letter to the Claimant dated 05/06/2019 that threatened the Claimant with a stage 3 Sickness Absence Hearing if the Claimant did not return to her work duties by Monday 8/07/19 with a possible outcome being the termination of employment on the grounds of capability;

f. The Respondent in the same letter sent to the Claimant dated implied capability threat against the Claimant;

g. The Respondent in the same letter sent to the Claimant dated medical condition;

h. The Respondent removing a reasonable adjustment previously made for the Claimant’s disability in a meeting on 26/06/2019, by relocating the Claimant to a different and more distant care home;

j. The Respondent ignoring a telephone notification by the Claimant on 27/06/2019 that her doctor was concerned about her change of location and this might be detrimental to the Claimant’s health;

k. The Respondent ignoring a telephone request by the Claimant on 27/06/2019 that she wanted to remain at Boldings Lodge as she had happily worked there for 10 years;

l. The Respondent on 27/06/2019 ignoring a telephone request made by the Claimant to consider an alternative move to Kingsmead Lodge as she car shares with her daughter and it is closer to home;

m. The Respondent disregarding a doctor’s letter dated 01/07/2019 regarding concerns about the change of location and the same being detrimental to the Claimant’s health;

n. The Respondent disregarding the recommendations and guidance from occupational health dated 03/07/2019 and failing to take onboard concerns about the Claimant’s change of location and this might be detrimental to the Claimant’s health;

o. The Respondent breaching staff confidentiality and data

p. Ms Jones acknowledging in a letter dated 24/07/2019 that the

q. Ms Jones advising in a letter dated 24/07/2019 that the Claimant was being moved location because “In our view it would be

r. By Ms Jones proposing in a letter received on 09/08/2019 that she would be prepared to hold a grievance and investigation in response to the Claimant’s letter of 29/07/2019 but would exclude the issues raised previously;

s. By Ms Jones stating in a letter received on 09/08/2019 that she u. Dismissing the Claimant. 19.If the Claimant was treated unfavourably then was the unfavourable treatment because of something arising from the Claimant’s disability, namely being off work for 5 months and her unwillingness to move to a different care home. 20.If so, can the Respondent show that the unfavourable treatment was a Indirect Discrimination- s.19 Equality Act 2010

[21]Did the Respondent apply the following provisions, criteria and/ or practices (‘PCPs’): a. A practice in the Respondent’s stage 3 disciplinary procedure where “the next stage may be a Disciplinary transfer”.

[22]Did the Respondent apply the alleged PCPs to persons who do not share the same protected characteristic as the Claimant? a. Any registered nurse that is/was a worker (employed, bank or agency) that is/was located at Boldings Lodge/Orchard Lodge that were part of a disciplinary process. 23.Did the PCPs relied upon put, or would put persons with who the Claimant shares the protected characteristic, at a disadvantage when compared with persons with whom the Claimant does not share it in any of the following ways as alleged: a. Having difficulty in coping with change and in particular transfer from a familiar place of work. 24.Did the PCPs put the Claimant at the disadvantage complained of? a. The Claimant was instructed by the Respondent in a ‘disciplinary transfer’ to a more distant and underperforming care home with unknown management, unknown staff and more numerous residents with different nursing needs while being disabled and under continuing medical treatment for cancer, depression, anxiety, panic attacks and insomnia; a. The Claimant’s established contractual arrangement to work at Boldings Lodge, put in place in January 2018 as reasonable adjustments due to disability, was removed with the Respondent’s non-consensual ‘disciplinary transfer’ to this more distant underperforming care home as described in 24 a. 25.Can the Respondent justify the PCPs by showing them to be a 26.Did the Respondent apply the following provisions, criteria and/ or practices (‘PCPs’): a. A practice in a worker’s contract with the Respondent that states: “You will be based at ‘named care home’. You may, however, be required to work at any other place from where the Organisation may operate from time to time or at any other establishment instructed by the Organisation within reasonable daily travelling distance of your home.”

[27]Did the Respondent apply the alleged PCPs to persons who do not share the same protected characteristic as the Claimant?a. Any worker that has a contractual arrangement to work in a registered care home within the Respondents control. 28.Did the PCPs relied upon put, or would put persons with who the Claimant shares the protected characteristic, at a disadvantage when compared with persons with whom the Claimant does not share it in any of the following ways as alleged: a. Having difficulty in coping with change and in particular transfer from a familiar place of work. 29.Did the PCPs put the Claimant at the disadvantage complained of? a. The Claimant was instructed by the Respondent to transfer to a more distant and underperforming care home with unknown management, unknown staff and more numerous residents with different nursing needs while being disabled and under continuing medical treatment for cancer, depression, anxiety, panic attacks and insomnia;

b. The Claimant’s established contractual arrangement to work at Boldings Lodge put in place in January 2018 as reasonable adjustments due to disability was removed with a non-consensual ‘transfer’ to this more distant underperforming care home;

c. Requiring the Claimant to travel to a more distant location facing more traffic congestion and additional long hold ups at peak hours which exposes the Claimant to longer and more variable travel time thereby increasing stress anxiety and potential accident risk while disabled and under continuing medical treatment for cancer, depression, anxiety, panic attacks and insomnia;

d. The Respondent proposing to the Claimant that she could take the free company bus which travels between different care home locations and into the town centre increasing time of travel and reducing flexibility of when the Claimant could travel / work. 30.Can the Respondent justify the PCPs by showing them to be a Failure to make reasonable adjustments (section 20 EA 2010)

[31]Did the Respondent apply a provision, criterion or practice on the Claimant despite her disability?a. The Respondent’s applied a stage 3 disciplinary procedure on the Claimant where “the next stage may be a Disciplinary transfer” by transferring her from Boldings Lodge to The Laurels;

b. The Respondent applied the Claimant’s contract term: “You may, however, be required to work at any other place from where the Organisation may operate from time to time or at any other establishment instructed by the Organisation within reasonable daily travelling distance of your home.” The Respondent intended to transfer the Claimant from Boldings Lodge to The Laurels. 32.Did any such provision criterion or practice put the Claimant at a substantial disadvantage in comparison with persons who are not disabled? By reason of her disability, the claimant has difficulty in coping with change and that has effects on her health. a. The Claimant was instructed by the Respondent to transfer to an underperforming care home with unknown management, unknown staff and more numerous residents with different nursing needs while being disabled and under continuing medical treatment for cancer, depression, anxiety, panic attacks and insomnia; b. The Claimant’s established contractual arrangement to work at Boldings Lodge put in place in January 2018 for reasonable adjustments due to disability was removed with a non-consensual ‘transfer’ to this more distant underperforming care home;

c. Requiring the Claimant to travel to a more distant location facing more traffic congestion and additional long hold ups at peak hours which exposes the Claimant to longer and more variable travel time thereby increasing stress anxiety and accident risk while disabled and under continuing medical treatment for cancer, depression, anxiety, panic attacks and insomnia;

[33]Did the Respondent have a duty to make a reasonable adjustment by allowing the Claimant to remain working at Boldings Lodge? 34.Did the Respondent make reasonable adjustments? Harassment- s.26 Equality Act 2010

[35]Did the Respondent subject the Claimant to any of the following unwanted conduct as alleged?a. Ms Jones writing in a letter dated 23/05/2019, in direct response to the Claimant’s grievance dated 16/05/2019, that matters raised would not be investigated as they were out of time and a second appeal was not permitted;

b. The Respondent’s HR Department continuously breaching the Sickness and Absence policy when corresponding with the Claimant by misdescribing the purpose of the meetings and not offering to have any representation to attend or alternatively not correctly describing what representative could attend;

c. The Respondent sending a letter to the Claimant dated 5/06/19 Hearing if the Claimant did not return to work on 08/07/2019 with a possible outcome being termination of employment on the grounds of capability;

d. The Respondent in the same letter sent to the Claimant dated 5/06/19 concluding the letter with ‘we look forward to you returning to work on Monday 8 July 2019’ thereby reinforcing the stated capability and dismissal threat against the Claimant.

e. In a meeting on 26/06/19, the Respondent telling the Claimant that she would be moved to a more distant and unfamiliar care home thereby breaking the established reasonable adjustments put in place in January 2018 in response to the Claimants disability;

f. In a meeting on 26/06/19, the Respondent removing a reasonable adjustment previously made for the Claimant in relation to her working at Boldings Lodge a home that she had happily worked at for 10 years;

g. The Respondent on 27/06/19 ignoring a telephone request made by the Claimant to consider staying at Boldings Lodge or as an alternative, move to Kingsmead Lodge;

h. The Respondent relocating the Claimant to a more distant and unfamiliar care home despite concerns being raised by the Claimant about how this would affect her wellbeing;

i. The Respondent continuing to relocate the Claimant to a more distant and unfamiliar care home counter to the advice given by the Claimant’s Doctor that this could be detrimental to the

j. The Respondent continuing to relocate the Claimant to a more distant and unfamiliar care home counter to the advice given by the Occupational Health Report that this could be detrimental to the Claimant’s health;

k. Ms Jones acknowledging in a letter dated 24/07/2019 that the

l. Ms Jones advising in a letter dated 24/07/2019 that the Claimant was being sent to a new location because “In our view it would be and other staff.

m. By Ms Jones proposing in a letter received on 09/08/2019 that she would be prepared to hold a grievance and investigation in response to the Claimant’s letter of 29/07/2019 but would exclude the issues raised previously;

n. By Ms Jones stating in a letter received on 09/08/2019 that she

o. Dismissing the Claimant.

[36]If so, did that conduct relate to the Claimant’s protected characteristic, namely disability?

[37]If so, did the unwanted conduct have the purpose or effect of:a. Violating the Claimant’s dignity; or

b. Creating an intimidating, hostile, degrading, humiliating or offensive environment or the Claimant?

[38]If so, having regard to all the circumstances of the case and the perception of the Claimant, was it reasonable for the conduct to have that effect on the Claimant? Victimisation- s.27 Equality Act 2010

[39]Did the Respondent subject the Claimant to a detriment because the Claimant had:a. Done a protected act; or

b. Because the Respondent believed that the Claimant had done a protected act.

[40]Are the below acts relied upon by the Claimant protected acts?:a. The Claimant advising the Respondent by way of correspondence and sequential doctor’s notes that she was unfit for her duties due to work related stress and they needed to consider reasonable adjustments in returning her to work;

b. The Claimant raising a grievance on 16/05/19 concerning a failure to follow policy and procedure;

c. The Claimant raising a concern that the Respondent was breaching the organisations own policies and procedures in relation to matters concerning disclosure and confidentiality and therefore breaching Data Protection legislation.

[41]The detriments relied upon by the Claimant are as follows:a. The Respondent’s HR Director (Ms Jones) writing in a letter dated 23/05/19 concerning the Claimants grievance by stating that the complaints would not be investigated and that nothing would be done;

c. The Respondent sending a letter to the Claimant dated 5/06/19 Hearing if the Claimant did not return to work with a possible outcome being termination of employment on the grounds of capability.

e. The Respondent relocating the Claimant to an unfamiliar care home despite the health concerns raised directly by the Claimant about how this further stress her and affect her wellbeing.

f. By the Respondent continuing to relocate the Claimant to a more distant and unfamiliar care home despite her requests to stay at Boldings Lodge, thereby removing an in-place reasonable adjustment which was to work at Boldings as per her contract;

g. The Respondent continuing to relocate the Claimant to a more distant and unfamiliar care home counter to the advice given by the Claimant’s Doctor that this could be detrimental to the

h. The Respondent continuing to relocate the Claimant to a more distant and unfamiliar care home counter to the advice given by the Occupational Health Report that this could be detrimental to the Claimant’s health;

i. The Respondent breaching staff confidentiality and data

j. The Respondent breaching data protection legislation by not disclosing requested information to the Claimant in response to a Subject Access Request;

k. Ms Jones acknowledging in a letter dated 24/07/2019 that the

l. Ms Jones advising in a letter dated 24/07/2019 that the Claimant was being sent to a new location because “In our view it would be

m. By Ms Jones proposing in a letter received on 09/08/2019 that she would be prepared to hold a grievance investigation in response to the Claimant’s letter of 29/07/2019 but the Respondent would exclude the issues raised previously in her 16/05/2019 letter;

n. By Ms Jones stating in a letter received on 09/08/2019 that she

o. Dismissing the Claimant. 3. Findings of Fact 3.1. The Respondent is a care home provider. It currently runs some 12 care homes. They operated more, perhaps 14 or 15, at the time of these events. Currently there are some 500 employees. 3.2. Ms Fehilly has been the Director of Human Resources for the Respondent since 02/02/20. Those directly involved at the time this claim is about have left the Respondent’s service. 3.3. The Claimant is a registered nurse and was employed by the Respondent from 15/03/10 to 8/07/19 when she resigned without notice. 3.4. She was employed to work as a nurse at Orchard Lodge (130) but at all material times was assigned to Boldings Lodge. These are two adjacent and linked high dependency care homes. Orchard Lodge is larger with 22 beds and Boldings Lodge has 12. 3.5. Ms Moorcroft worked nights in part because she cared for her disabled longterm partner during the day. 3.6. Prior to the matters at issue here, she had a good disciplinary and competence record. When she first joined the Respondent, she was under investigation by the NMC (the nursing and midwifery regulator). The case against her was closed with no case to answer, so she has a clean record. 3.7. The claimant was diagnosed with breast cancer and signed off on long term sickness absence from work on 15/12/16. 3.8. She had had a diagnosis of depression in 1999 (GP report June 2020). She was treated for anxiety and panic attacks from 2011, when her partner was terminally ill. 3.9. Her GP completed a short report on 08/11/17, which confirmed that she would be fit to return in the new year of 2018, “by working 2 non-consecutive night shifts per week” (302). 3.10. A GP report was commissioned on 20/11/17 for the purposes of planning her return to work, asking in particular for guidance on the likely date of return to work, any ongoing disability, whether that would be permanent or temporary and whether she would be able to render regular and efficient service in future. Specific recommendations were requested, for example, no lifting or driving, that would assist in identifying suitable alternative work if necessary and whether there was any recommendation for continued medication or treatment. It did not name any specific condition. 3.11. That report has not been produced. A prepayment invoice was submitted to the Respondent but not paid and the report was not received. 3.12. At the time, Mrs Moorcroft’s medication included medication for anxiety and depression, paroxetine and sondate XL with nitrazepam for insomnia and panic attacks, as well as letrozole intended to protect against cancer recurring. 3.13. The medication in respect of depression had been in place since 1999 and in respect of helping with sleep, anxiety and panic attacks since 2012 (Impact statement 758). 3.14. She was still awaiting reconstructive surgery in respect of the breast cancer. 3.15. Having given consent for the report to be obtained, Ms Moorcroft understood the respondent to have been informed of her medical history, including her mental health problems of long-standing. However, she agrees that, without that report, the Respondent would not have known of her stress-related problems (save as characteristic for those with a cancer diagnosis) before she was signed off with work-related stress (oral evidence). She agrees she did not make an issue of her mental health problems, but, “Even if they did not understand my stress levels, they were supposed to be supporting my recovery and helping me get over my breast cancer. 3.16. She met the Occupational Health practitioner, Wendy Ladd on 28/02/18 (331) There was a recommendation for a staged return to work over four weeks, to permit her to work in a supernumerary role, gradually increasing her activity. Her status as a disabled person was recorded. She is reported as feeling well and keen to return to work. 3.17. There is no reference to her history of mental health problems and her psychological well being is only canvassed in general terms, “Work is generally good for health and wellbeing….. When people have been off sick long-term though, their level of physical and mental stamina is unlikely to be as it was prior to their absence, but they can only build up that stamina by gradually returning to work”. (332) Contract and adjustment 3.18. For her return to work, Ms Moorcroft negotiated a reduction in her working hours from three night shifts (36 hours) to two (24 hours), at Boldings, which the Respondent accepted as a reasonable adjustment in the light of her disability. She also had a phased return to work (SM para 11 and 14). 3.19. The adjustments reflected her need for reduced working hours from 36 per week to avoid undue fatigue, her need for a familiar and very local place of work, to help her with depression, anxiety, panic attacks and insomnia. She found coping with change difficult. She remained under treatment for her mental health conditions and needed an environment and conditions in which she could manage them successfully. She also had responsibility as a carer for her new partner, who was disabled with chronic obstructive pulmonary disease. The Respondent has not recorded the reasons for the adjustment and we don’t know how fully they were discussed, but those were the reasons she sought them. 3.20. Those changes are reflected in the contract effective from 5/03/18 (159 – 172). 3.21. She returned to active duties on 8/03/18, having taken the accrued holiday arising during her absence. 3.22. Her rate of pay in the 2018 contract was £13.00 per hour normally but £13.50 per hour at the weekend and £26 per hour over Bank Holidays. 3.23. A further contract was entered into with effect from 10/01/19. The rate of pay was £15.00 per hour normally but £15.50 at the weekend. August 2018 – first disciplinary 3.24. In August 2018, an individual supported by the respondent was admitted to hospital and subsequently diagnosed with pneumonia. 3.25. Ms Moorcroft had been involved in his care on the night of 2/08/18 to 3/08/18. 3.26. She was initially suspended pending an investigation. She was instructed in a telephone message on 9/08/19 not to come to work. She did not know at that stage why, was not told in response to her enquiry and was distressed (phone call, letter 10/08/18, SM para 12). 3.27. The Disciplinary Policy permits suspension in the event of serious or gross misconduct. The suspension is on full basic pay. It is described as a neutral act, and to be for as short a period as possible. It is not considered a disciplinary action (214). 3.28. On 10/08/18, she received a letter from Ms Bryce, the then Head of HR, referring to the suspension and to a conversation about it said to have been on 9/08/18, which had not taken place, “I made you aware of the serious allegations which have been made against you in relation to failure to appropriately respond to deteriorating condition of a person in your care” (344 and SM ws para 18). 3.29. Ms Moorcroft was invited to an investigation meeting on 24/08/18 by a letter dated 21/08/18. (346) That was the first contact after 10/08/18. She had been ill while waiting (SM para 21). 3.30. The letter sets out the basis of the investigation, “The misconduct alleged includes: -

• Failure to respond to reading below baseline observations

• Failure to safeguard a person we support” 3.31. She was not offered the opportunity to be accompanied. 3.32. She was not told which resident the investigation related to or the date of the alleged errors. She had been barred from contact with her colleagues or line manager and had had no access to any records. Investigation meeting 24/08/18 3.33. At the meeting, conducted by Ms Hall, Ms Moorcroft learned that the issue concerned the night of 2/08/18 to 3/08/18 (349). She had, as the nurse on duty, completed the daily nursing notes She says she had been asked by her colleague who covered the day shifts before and after her own to also record her observations on a separate sheet so it would be conveniently available to fax to the doctor the next day if needed. 3.34. The meeting considered the hand-written notes. The actual nursing log was not looked at. Ms Moorcroft acknowledged that handwritten notes like that were not the appropriate way of keeping records, but confirmed that she had maintained the proper records first. She agreed that the first of her observations on the hand-written sheet showed low oxygen, but that she had thought it might be a poor reading and had increased her observations. The next reading noted was at 10.00 (350) – an observation that would have been due at 9.00 pm was not shown. She acknowledged that her recording was poor. 3.35. The finding was that she made her records on a piece of paper, not in the proper nursing records (360, 364). 3.36. Suspension was lifted at that meeting, while the matter continued to a disciplinary. First Disciplinary 3.37. A disciplinary hearing was held on 06/09/18 (356). 3.38. She was told she could have someone with her. She did not – she had not been in touch with the Royal College of Nursing for advice. 3.39. The list of documents provided and considered do not include any formal nursing notes, either the log or the NEWS reports (357, 359). No evidence is noted as “not collected”. Her handwritten note of the observations of the night was produced (see 363 and 364 and attached note and 788 and 791). 3.40. The notes of the meeting were not sent to her and have not been produced (371). 3.41. The findings made were these:

• Failure to respond appropriately and swiftly to reduction of baseline observations

• Failure to record observations correctly

• Failure to safeguard a person we support (381) 3.42. The outcome rested on reliance on the handwritten note, without consulting the statutory nursing log, which showed the actual care and observations. The statutory nursing log showed that the 9.00 pm observation was not missed, and that in writing out the handwritten note, hurriedly, Ms Moorcroft had made a transcription error. The oxygen levels were not severely low: she had miscopied the pulse rate by mistake. 3.43. The outcome was a final written warning live for 12 months from 7/09/18 (381). She was required to complete Respiratory Specialist Nurse Training and have a session on the Management of the detreating patient using NEWS (National Early Warning System), and to undertake Reflective Practice, submitting it for her file. 3.44. Ms Moorcroft did not appeal. January 2019 – second disciplinary 3.45. A resident – now known within this company as a PWS (person we support) - was discharged from hospital on 18/12/18 (526). Over the following five days there were a number of medication errors. 3.46. From the letter to the manager Mr Kentish from the Enquiry Manager in the local authority, copied to the CQC, the funding authority and the family, dated 29/03/19, this picture emerges, “On 22nd December, a medication error for SR was identified. Antibiotic (metronidazole and amoxicillin) should have been completed by 20th were given on 21st and 22nd Glycopyronium (salivation inhibitor) due 3 times a day had none in stock and none given from 21st to 24th Diuretic medication given, frumil tab (new) with no dose on MAR chart, states it should replace co-amilofruse (previous medication) but both given until 21st. Now only co-amilofruse being given until clarification given by GP Glycopyronium prescription requested on 22nd, not in stock with pharmacy but due on 24th for collection….” (526) 3.47. An investigation was instigated into five nurses who had been on duty over that period (387), including Mrs Moorcroft. The initial alleged misconduct was set out as including -

• “Failure to appropriately record medications on MAR charts

• Failure to follow guidance from GP, pharmacist or hospital in relation to the administration of medications

• Failure to report medication errors, administration errors or concerns over medication. Failure to complete UTEs (untoward event reports) when required for medication incidences

• Failure to seek medical advice or clarification to ensure the service user is safe and well

• Placing service user at risk of harm through medication errors

• Failure to complete your duties in line with policies and procedures, job description and best practice. 3.48. Ms Moorcroft was on duty on the 18/12/19 to the morning of 19/12/19. She was not on duty on any later dates over the period to 24/12/19. 3.49. An investigation meeting was held with Ms Moorcroft on 18/01/19, at 8.00 am, after a night shift, by Ms Hall (430). The invitation to the meeting explains that the six matters above were at issue in her case, in relation to medication errors between 17/12/18 (sic) to 22/12/18 (390). 3.50. Ms Moorcroft had been the first to receive the medication after the PWS’s discharge from hospital. The discharge letter and medications had been left behind when he left hospital and arrived that evening (430). 3.51. The PWS had been discharged with amoxicillin and metronidazole, both antibiotics. Seven doses of both had been sent out from the pharmacy to complete that course (430, 445 and oral evidence Ms M). The medication was in capsule form, which had to be administered in liquid because the resident could not swallow. Both required doses to be administered three times daily. The courses were to be completed on 20/12/98 (445 – discharge summary; medication administration sheet 443, 430 investigation meeting). On 20/12/98, the medication should have been exhausted. 3.52. The MAR chart is supposed to be completed by the nurse handling new medication, and the quantity of the prescribed drug noted, with the nurse’s signature. Ms Moorcroft is noted as agreeing that she had not completed the record accurately with those details: she had also not put a line through against the medication to show when it would end on the MAR chart and signed against it. She had completed the statutory nursing log and she had spoken to the day nurse on handing over about the antibiotics (431 and oral evidence). She had administered the medication correctly – that is not at issue. 3.53. It is put to her that as a result of her failures, the resident had had an overdose of two days of antibiotics. “If you had put the line through on 21/12/18 to be completed that wouldn’t have happened. That has basically led the nurses to continue giving the medication”. 3.54. Each nurse is responsible for checking the medication and should have read the discharge notes themselves. This is recorded as a failure in the outcome of the disciplinary in respect of the other employed nurse as well as, in her case, the same failure as Mrs Moorcroft’s error in respect of recording the end date of the antibiotics on the MAR chart (798/97, 417). 3.55. It remains unclear why the allegation is of an overdose of the antibiotics, given that only seven doses of each were prescribed (445 and 430, hospital discharge summary and the investigation notes, as explained by Ms Hall), “On the discharge document the patient’s amoxicillin and metronidazole have a very clear set of instructions, ….. He had started the seven-day course in hospital, and they supplied seven more doses to complete on the 20 December 2018 of medication” (430). 3.56. If the medication had been correctly administered, the doses would have been finished at the right time. However, the allegation was that Ms Moorcroft had caused overdoses by her failure to show the end date. 3.57. Ms Moorcroft was invited to a disciplinary hearing on 18/02/19 (412). The allegations were:

• Failure to record medications correctly resulting in an overdose of antibiotics being given

• Failure to safeguard a person we support 3.58. With that invitation was a bundle of documents including the investigation reports, MAR sheets, notes, reports and information concerning other nurses, six witness statements relating to events concerning another nurse. The heading of the investigation report was titled “Nurses @ Boldings” (414 – 492) 3.59. In the Investigation Report is the following note, “Persons not interviewed Sarah failed to administer and record correctly like the other nurses involved. Sarah works limited shifts and I do not believe she could add any further information to the investigation process.” 3.60. Sarah therefore is the sixth nurse implicated (416). 3.61. The investigation report notes a series of errors over medication. In respect of the 2 antibiotics, the end date was not recorded. The report refers to “extended administration” of the antibiotics and that a change in dose took place of the metronidazole, without reason, date or signature, on 21/12/19 (417). There was a double dose of diuretics. Amendments on the MAR charts were not signed or dated, booking-in of new medication was incomplete. “All nurses failed to see the errors and therefore did not report or seek medical attention for SR. All nurses acknowledged that they did not look back on the MAR chart and check their colleagues’ entries to ensure there were not errors that they needed to address.” 3.62. In respect of Ms Moorcroft, the findings of the investigation report were, “Sheila accepted that she did not complete the MAR chart correctly when SR was discharged, she did not give the instructions for 7 doses only, she did not sign or date her entries and she did not add the quantities booked in.” 3.63. There are similar specific findings in respect of three other nurses interviewed. (418) 3.64. Three other nurses specifically were responsible for the double dose of diuretic, through failure to remove the earlier prescribed medication and failing to check before administering both. That began on 19/12/19 and did not involve Ms Moorcroft. 3.65. Three nurses were identified as responsible for the extended administration of antibiotics, administering doses on 19th, 20th, 21st and 22nd without checking the discharge summary. Those included the other employed nurse, but not Mrs Moorcroft. 3.66. For the medication to be administered on 21st and 22nd December, there must have been failures to administer the doses due on 19th and 20th. Oddly, that is not noted. 3.67. There was an unsigned and unexplained change in dose noted in respect of metronidazole on 21/12/19. “The other nurses obviously did not read the discharge form.” Investigation report (417) 3.68. Ms Moorcroft was not implicated in failing to administer the right dose of medication on her shift or of administering the wrong medication, the double dose of diuretics, or of omitting any medication due. 3.69. There were other failures in relation to glycopryonium, when the prescribed medication ran out and was not replaced over four days. Ms Moorcroft is not identified as having contributed to this error. A different nurse had reported that issue as resolved when the medication remained unavailable to be administered. 3.70. Another nurse, not one of the two employed nurses, was identified as having been responsible for “several” of the “numerous” medication errors in the past year (420). 3.71. It is noted that the home has been under scrutiny, with only two permanent nurses, including Ms Moorcroft, and a very high agency nurse use (420). 3.72. Every nurse administering medication is responsible for checking the right dose and that it was being administered appropriately (oral evidence and investigation report). 3.73. There is a lengthy list of recommendations, relating to ordering, booking medication, handing over, management audit, training, in particular on recording, administering medication, reporting errors, and appropriate actions, checking the BNF (British National Formulary, the medication handbook) to avoid errors, safeguarding and supervision for all staff. 3.74. One other nurse – the other permanent nurse - had a disciplinary and was demoted, later reviewed on appeal. 3.75. The other nurses involved were agency nurses (Ms Fehilly, by inference from the evidence). 3.76. While Ms Moorcroft reports that the antibiotic concerned was administered in capsules, the report and investigation minutes also reflect discussion of liquid antibiotics. She felt there was confusion in the investigation about what her role had been. 3.77. She acknowledged recording errors – important, but plainly, from the investigation report, commonplace at that time. In relation to the following, eleven nurses are named, “All nurses appear to have failed to follow best practice and policy and procedures in relation to medication. Nurses have completed MAR sheets incorrectly, nurses fail to check MAR charts completed by their colleagues and report errors. There appears to be a level of complacency (“compliancy”) in relation to medication.” (418/9) 3.78. Beyond those errors, Ms Moorcroft is not shown as making or contributing to the multiple errors identified and that took place after her shift finished on the morning of 19th December. 3.79. The disciplinary hearing took place on 18/02/419 before Ms King, Regional Operations Director. Ms Moorcroft was not represented (493 - 497). She had been reassured by the investigating officer, as she had at the time of her first disciplinary, that this was not a matter for dismissal. 3.80. The charges were, “Your failure to record Medications correctly resulting in an overdose of Medications being given; Your failure to safeguard a person we support.” 3.81. Ms Moorcroft acknowledged failing to record on the MAR the point at which the antibiotic should cease, with a date and signature. She had received an unbroken bottle for both the antibiotics, so for each there was the right number of doses (495). She agreed she had not written in the number of doses received. 3.82. In the outcome letter dated 22/02/19, the finding made was that, “You have admitted that you had made the medication errors and apologised for the mistakes that you made when adding the two new medications to the MAR chart.” 3.83. There was no finding that Mrs Moorcroft had administered the wrong medication, or the wrong dose, or had omitted to administer medication. There is no explanation for the suggestion that she had caused an overdose, given that the discharge record showed only sufficient capsules issued to finish the course. 3.84. The sanction applied was that Ms Moorcroft was demoted to the position of care assistant, to work at the same care home (498). That was instead of dismissal, given that she was on a final written warning in respect of similar errors. 3.85. She would be working under people she had previously supervised and for the minimum wage. Her pay dropped to £7.90 per hour for weekdays or nights, £8.40 for weekend days or nights and £15.80 for bank holidays (498). The recommendation was made for a referral to the Nursing and Midwifery Council (“NMC”) for consideration in respect of her nursing registration. 3.86. The letter states that, “I am happy for you to continue working at Boldings”. 3.87. On 27/02/19, Ms Moorcroft was signed off sick and produced a onemonth GP fit note citing (only) “work-related” (502). That was accepted as relating to work-related stress (529). 3.88. On 9/03/19, Ms Moorcroft appealed the disciplinary decision (503). She pointed out that although the reason given for the penalty was “failure to record medications correctly resulting in an overdose of antibiotics being given” she had in fact stated the correct medication and dose and frequency, so the error related only to the end date. Someone else was responsible for changing her entry for metronidazole from three times per day to twice per day, without date or signature. 3.89. The appeal was heard on 27/03/19. It was conducted by Ms Bates with a panel member. Ms Moorcroft was represented. 3.90. She confirmed again that she had not entered the end date on the MAR chart of the antibiotics, she had omitted signing one copy of the MAR, and she had not signed one of the drugs in (amoxicillin). She had handed over orally to a staff nurse who knew the patient, rather than using a signing over procedure as would have been good practice. She had not used the formal route for double checking the administration of amoxicillin (523). 3.91. In the outcome, the panel confirmed the demotion but added scope for her to request reinstatement to a nursing position after six months (519). The outcome would depend on her performance, her ability to demonstrate competence and willingness to undertake any learning or development. 3.92. The letter refers to her previous final written warning. The findings made on this occasion, were that she had not sought a counter signatory at the shift handover for the new medications. The MAR entries lacked dosage and end dates, or quantities received despite all those being clear in the discharge summary. She had failed to write the route of administration for the amoxicillin or to sign that entry (519). 3.93. The other permanent nurse also faced disciplinary proceedings. 3.94. This nurse is noted as admitting that she had not removed the Frumil when the other diuretic was received, hence double doses of diuretic being administered for three days. She personally administered both drugs on two days. She acknowledged she did not know they were the same and she had not looked them up in the BNF. She was aware of the potential for damage to the resident’s heart, kidneys and liver, in particular given the recent dehydration on admission to hospital, and the need for regular observations. 3.95. She had read the discharge summary but had not noticed that the antibiotics were due to complete on 20/12/18. Her failure to mark the antibiotics as completed or the end date contributed to the resident receiving further doses over two days. 3.96. She acknowledged not administering a dose of glycopyronium on 21/12/18. She had failed to report that the medication was missing. She knew the steps she should have taken on identifying a drug error and confirmed that she did not take action to seek further medical advice. She had not followed the Untoward Event procedure. As a result, the errors had not been picked up until a carer referred the matter to management on 24/12/18 (798), when an emergency prescription was obtained. 3.97. That list does not include that she was in fact one of the nurses who administered the antibiotics incorrectly, as identified in the investigation report (419 and 798). 3.98. Again, the finding is of an overdose of antibiotics, without regard to the fact that the capsules should have finished if properly administered. The nurses on duty had administered the wrong doses of antibiotics but that was not recognised. 3.99. Oddly, the allegations put to the nurse did not include her repeated errors over the administration of medicine, although the findings include them. The sanction imposed was therefore for documentary errors (797). 3.100. She had also had a previous final written warning (799). 3.101. She was demoted to the role of care assistant. She was also issued with a final written warning. 3.102. That demotion, imposed on 6/03/19, was overturned on appeal on 12/06/19. 3.103. That nurse was reinstated to a nurse role, but with a condition of being supervised and working at a different care home. She was referred to the NMC. The reinstatement was in part because on an earlier disciplinary, although errors in the administration of medication had been found, only documentation errors had been the basis for sanction. 3.104. Given that history, neither permanent nurse was held to account for errors in the administration of medication, Ms Moorcroft because she had not made them and the other nurse because although she admitted to them, they had not been included in the allegations for which she was disciplined – for the second time, according to the appeal outcome (802). 3.105. On 29/03/19, Dee Scrivens, Enquiry Manager for Children, Adults, Families, Health and Education had written a summary in respect of the enquiry into safeguarding concerns raised in this series of incidents (526).

• Antibiotics (both) should have been completed by 20th but were given on 21st and 22nd

• Glycopyronium had not been administered from 21st to 24th and replacement stocks were only due on 24th.

• Two diuretics had wrongly been given together. 3.106. Amongst measures being taken were that two individuals (the two employed nurses) had been demoted to the role of care assistant and referrals were being made the NMC and DBS. Additional clinical oversight was provided, and, “The agency nurses we have been using within the home have been block-booked and are familiar with the people living at Boldings. There are 4 agency nurses we regularly use who have worked with us now for 14, 11, 9 and 4 months and on an ongoing basis. 3.107. From that it appears that the authority were unaware that ultimately neither demoted nurse had been held responsible for the errors in the administration of medication. Given that eleven nurses had been found responsible for documentary errors such as Mrs Moorcroft’s, it remains a possibility that those four agency nurses referred to were amongst those who contributed to the errors, but we do not know. Sickness absence management 3.108. Mrs Moorcroft supplied a GP fit note signing her off from 25/03/19 to 30/04/19 and citing work-related stress (525). 3.109. There was a sickness absence review on 09/04/19 (529). 3.110. Mrs Moorcroft was invited to sign a consent form for an Occupational Health assessment but failed to do so because she could not face filling in the form. 3.111. An “informal wellbeing meeting” was planned for 24/05/19, later changed at Ms Moorcroft’s request to 30/05/19 (540, 549). 16/05/19 – the Grievance 3.112. On 16/05/19, Mrs Moorcroft raised a grievance with Mrs Jones, the then Director of HR, asking her to review the first disciplinary hearing on the basis that there had been an error caused by the failure to consult the actual nursing log (541). The disciplinary had been conducted on the basis of her handwritten summary, prepared at the end of the shift, on which she inaccurately recorded oxygen levels at 83% at 20.00 and omitting an observation at 21.00. The log showed the correct observations including the one at 21.00. The actual oxygen level at 20.00 was 93% and the next one at 21.00 94%. There had been no failure to respond to a grossly reduced oxygen level. She had not earlier had access to the actual nursing log, on the basis of which she could have defended the case. She produced a copy of it with the Grievance. 3.113. She said there were failures too in the later investigation and in the appeal. 3.114. In relation to the second investigation, she says “It was not possible to overdose the service user with the antibiotics as the required dosage to complete the course were provided by the pharmacy at East Surrey Hospital.” There was no possibility of an overdose unless a further prescription was ordered. 3.115. The investigation report dealt with a range of medicine errors involving other nurses which had been confusing and misleading: it was not clear what she was accused of and she says the panel must have been equally confused. 3.116. She had been asked about bottles of liquid medication when the prescription was of capsules. 3.117. She had also established by fuller investigation that while she had earlier admitted to errors in recording on the MAR sheet, what she had written had been correct – her error had been only in relation to outing in a line after the medication had finished. 3.118. The appeal panel had also refused to consider alterations to the MAR chart made by someone unidentified and unexplained. 3.119. She also complained of a casual remark made about her PIN status by Ms Bryce, the former director of HR (546). 3.120. She asked for further disclosure including the nursing notes and other documents relating in particular to the first investigation and the transcript and recording of the disciplinary meeting of 6/09/18. 3.121. She also asked to know if reports had been made to the NMC and DBS (547) following the second disciplinary. 3.122. On 23/05/19, Mrs Jones declined to review the outcome of the previous disciplinaries or to take further the complaint about Ms Bryce who had left the organisation. She did agree for the 16 documents or categories of documents to be sent (551). (They have not all been received.) 3.123. Ms Fehilly, who was of course not in post at that time, was able to put this in context, “Our policy makes it quite clear that anything to do with disciplinary comes under the disciplinary procedure. … We don’t have an appeal process that allows for two appeals.” 3.124. Mrs Moorcroft submitted a doctor’s note signing her off from 25/05/19 to 21/06/19, again with work-related stress (556). 3.125. The Wellbeing meeting, now headed “Wellness Meeting”, took place on 30/05/19 (553). Ms Moorcroft explained that she was not willing to come back to Boldings as a care assistant. There was discussion of the grievance, and Ms Moorcroft’s submission of new evidence in respect of the first disciplinary and of the failures of the investigation in relation to the second disciplinary, and the witness statements disclosed to her that did not relate to her at all but to the other nurses concerned. 3.126. The invitation to the meeting had referred only to an informal wellbeing meeting (540). In the report issued following it, on 5/06/19, it is referred to as an Occupational Health Assessment Review Meeting (Stage 2) (559). 3.127. Given Ms Moorcroft’s failure, described as refusal, to consent to a further report from Occupational Health, coupled with her refusal to return as a care assistant, it was suggested in that report that if she did not return by Monday 8/07/19, a Stage 3 Sickness Absence Hearing would be arranged. That could lead to termination of her employment on the grounds of capability (560). 3.128. She had not been told that there were stages to the sickness procedure or that they were being applied to her, nor are these stages reflected in the policies produced. 3.129. There is no specific Sickness Absence Policy that has stages. There is a Capability Policy which has stages. It is primarily about performance but states that it is to work in tandem with the sickness policy. Stage 1 requires a warning; stage 2 requires a final written warning. Stage 3 moves to dismissal. 3.130. She had not been through stages 1 and 2 or known that this policy was being applied. 3.131. Referral to the NMC was still in hand; the Regional Operations Director noted in an email on 5/06/19, “I will pick this up and make sure that the referral is made” (560). 3.132. In response to the letter of 5/06/19, Ms Moorcroft completed the consent form for the Occupational Health referral. Penalty review 3.133. The two employed nurses had both been demoted following the incident in December 2018. The other nurse appealed and secured reinstatement to work as a nurse, albeit under supervision, on 12/06/19. 3.134. Given that changed outcome for the other nurse, the Respondent decided to review the penalty imposed on Ms Moorcroft, inviting her to a meeting by email written on 20/06/19. 3.135. On 26/06/19, in a meeting with Ms Jones, she was offered reinstatement to a nurse position with a transfer to a different care home, and a three-month development and support plan (569). The proposal was for her to work days rather than her two night shifts, and as a supernumerary until she had been signed off as competent in all areas. It was described as the same outcome as for her colleague. 3.136. The proposal was for a move to a larger care home, further away from where she lived. 3.137. The transfer elsewhere was not proposed as temporary. 3.138. This was the first notification to her of the proposed change (oral evidence). 3.139. In the notes of the meeting, there is no indication of consultation. “”You will not be based at Boldings, you will be moved to Rapkyns care village, to The Laurels…… You will not be able to work nights because of the support you will need. Instead of two 12 hours nights you can do two 12 hour days. You will be supernumerary until you have been signed off as competent in all of the areas.” 3.140. Ms Fehilly is clear that normal practice would involve consultation. The proposal was made and it was left to Mrs Moorcroft to consider. No alternative was offered. 3.141. There is no reference to the adjustments previously agreed for her to work on non-consecutive nights or consideration of her medical history, her disability, the need for any adjustments. Those things were not discussed. This was not an occasion on which there was any evaluation of her competence or culpability. It was simply the substitution of a transfer on a disciplinary basis for demotion, both sanctions available under the policy where there has been either gross misconduct or further issues arising after a final written warning. 3.142. The Laurels was further away, with up to 41 residents, including fit young adults with profound learning difficulties. It had received poor CQC reports. (597 – 633). There were reports of behavioural difficulties including challenging and aggressive behaviour. Ms Moorcroft felt unable to cope with that. 3.143. Ms Moorcroft rang Ms Rogerson in HR on 27/06/19, expressing unhappiness over being moved to The Laurels, having spoken to her GP. She reported that the doctor, “…is concerned that the change to the Laurels may be detrimental to Sheila’s health,” as Ms Rogerson reported to Ms Jones. The doctor could not understand why Ms Moorcroft was being moved. She asked for Kingsmead to be considered rather than The Laurels (572) but wanted to remain at Boldings. 3.144. Ms Moorcroft was seen by Occupational Health on 3/07/19 (573). The Occupational Health referral had been arranged before this decision was made – it was not in response to Ms Moorcroft’s reservations about the transfer. The report describes work-related stress, “Shelia said that she still feels stressed and upset over the situation at work. She described various symptoms of this including poor sleep and concentration, low mood, over-eating and skin problems. In other words she remains subject to reduced levels of psychological wellbeing which she attributes to the situation at work. She said that all of this had impacted on her feeling able to go out. She said she believes the thought of moving to a different home is adding to her stress, partly not knowing the home, but also that the journey would be about 30 minutes rather than the 3 minutes to where she had been working.” 3.145. The report continues, “I believe that the issues in this case are primarily employee relations matters causing Sheila emotional upset and she would otherwise be at work. The ultimate solution is therefore likely to be management not OH orientated as she states symptoms are directly attributed to specific issues in the workplace” (574). 3.146. The report also draws attention to “her previous and underlying medical conditions, and the importance of her maintaining her general wellbeing.” The discussion that follows is about cancer risks. 3.147. Her over-eating is noted a stress response. It is noted that the proposed move to a new workplace was adding to her stress reaction (575). 3.148. From a medical perspective, the writer saw no reason why Ms Moorcroft should be unable to carry out the full range of duties, “assuming any ongoing reduced concentration and disturbed sleep do not adversely impact on her”. Resignation 3.149. Ms Moorcroft felt she was facing further disciplinary action if she did not return to work on 08/07/19 as stipulated in the email of 5/06/19, after the meeting of 5/06/19. 3.150. Ms Moorcroft submitted her resignation letter dated 7/07/19 (576), a Sunday. She refers to the fact that it had been agreed that the disciplinary sanctions had been too harsh. But the plan made was one she saw as detrimental to her health and that would cause her more mental and physical stress. 3.151. With her resignation letter, Ms Moorcroft provided a letter from her GP dated 1/07/19, supportive of her remaining at Boldings and Orchard (577). It refers to her prolonged absence for work-related stress, and then, “Sheila tells me that she is to return to work, not at her previous place of work, which was Boldings and Orchard, but at a new place for her, the Laurels. She is finding this thought very stressful and would far rather return to her previous place of work. I am concerned that recommencing work in a new and strange environment may be detrimental to her mental health. Mrs Moorcroft tells me that she will need to work two long days in order to complete a course and she is happy to do this, but after this period she would very much like to return to her usual hours of work” 3.152. Ms Rogerson consulted the Head of HR, Ms Jones and passed on the GP advice. As a result of internal discussions, Ms Moorcroft was invited to a meeting on 17/07/19 to discuss her resignation with Ms Rogerson (580). 3.153. The recent medical evidence highlighting the stress of the proposed move was not discussed. No alternative to the transfer to The Laurels was put forward by the Respondent. 3.154. Asked why she had resigned, she said that, “No-one has considered the fact that I didn’t do anything to get gross misconduct”. 3.155. She asked why it was ok for her to come back to Boldings as a care assistant but not as a nurse. There was no reply. Ms Rogerson only discussed her working at The Laurels, Ms Moorcroft was only willing to return to Boldings. 3.156. Ms Moorcroft was reluctant to work days, but Ms Rogerson told her that once the development plan was complete, she could go back to her former pattern. 3.157. Ms Moorcroft wanted to return to Boldings as a nurse. “I am not choosing to leave, I have been made to leave.” (581) 3.158. Her concerns were that The Laurels had a different type of resident. She felt The Laurels to be mentally and physically challenging for her, given the client group served. She did not feel strong enough to go there. There were problems for her in transferring to day work, given her caring responsibilities for her partner. She knew the home to have had critical reports, including from a CQC report based on inspection in February 2018. It is described as a large clinical setting, and the summary highlights instances of physically challenging behaviour. There had been multiple safeguarding investigations. In her evidence, she expressed concern about being able to cope with that setting (598 and oral evidence). In addition, it was a home that she did not know, her travel would be more difficult and would take longer. 3.159. The Respondent took the view that for her to be a supervised nurse on a development plan, she needed to be working day shifts (LF para 38). 3.160. Ms Moorcroft was invited to a further meeting on 1/08/19 to discuss her resignation by Ms Jones. That letter, dated 24/07/19, explains the decision not to allow her to return to Boldings in these terms, “This (resignation) is concerning and disappointing as I am sure that we can reach a suitable compromise to enable you to return to work. As discussed, SHC has a duty of care and we must protect you and the staff at Boldings. One of the key reasons for not placing you back at Boldings is the fact that many of the staff there provided witness statements during the disciplinary processes. In our view, it would be remiss of SHC to place you back at Boldings because of this, and the difficulties that it may create for you and other staff” (587). 3.161. The statements referred to (423 on) do not relate to Ms Moorcroft. They relate to the other permanent nurse and raise a number of issues concerning her professionalism, including allegations of concealing medication errors and bullying or trying to bully colleagues into doing the same. Other nurses are mentioned and there are admissions of error. The accounts relate primarily to events from 22/12/19. Ms Moorcroft is not mentioned. Her last shift ended on the morning of 19/12/19. 3.162. Ms Moorcroft declined to attend that meeting but instead confirmed that her resignation stood, in a detailed letter dated 29/07/19. She pointed out the error in relation to the witness statements, “There were no witness statements that I can identify in the second disciplinary hearing that would have prevented my return to Boldings and Orchard Lodge” (589). 3.163. She reiterated the unfairness of her first disciplinary process, given the failure to consult or provide the statutory nursing notes and that the simple error she acknowledges in copying the formal notes onto a separate sheet did not merit the final written warning. Failing to check the actual records led the panel into serious error. She reiterated her unhappiness at having her grievance of 16/15/19 dismissed out of hand on the basis that no second appeal can be brought, notwithstanding what she described as the gravity of the error in the investigation. 3.164. She reiterated the unfairness of her second disciplinary process. Reliance on a report dealing with “All Boldings Nurses” (a reference to the report “Nurses @ Boldings”) led to the failures in the disciplinary hearing arising from the inclusion of the concerns about the other nurses. She notes that the only action taken by the Respondent was against the permanent nurses. There had been a lack of clarity over the allegations, given that all nurses were dealt with together. The outcome had been influenced through the unfair earlier final written warning. The sanction imposed for her had career and life-changing consequences. The demotion had been unlimited, and the appeal had only produced the possibility of a review after six months, if the Respondent decided that was appropriate. There would be real difficulties for her as a nurse in working as a junior carer at Boldings Lodge and Orchard Lodge, while remaining, as a registered nurse, under the Nurses’ Code of Conduct and duty of care in a situation where there was a permanent shortage of nursing and care staff. To report to staff that used to report to her would be stressful and precarious, given the consequences of any perceived infraction. 3.165. It was unreasonable to review the penalty without responding to her grievance asking for review of the disciplinary. It was unreasonable now to insist that she did not work at Boldings as a nurse when it had been seen as satisfactory for her to work there as a care assistant. 3.166. Her request to work with staff and residents she was familiar with at the care home she was familiar had not been considered as a reasonable adjustment notwithstanding the terms of her GP letter and the Occupational Health report. 3.167. She considered there to be nothing more to pursue with the respondent to try to rectify the situation and that her nursing registration, her PIN number, was in jeopardy if she remained in that employment (589). She raised again the comments she had complained of on 16/05/19, which Ms Jones had not treated as a grievance, when, in a discussion about a possible further Occupational Health report, given her current stress and anxiety of her situation, there had been inappropriate comments including about her PIN, without which she could not work as a nurse. 3.168. 09/08/19 Ms Jones wrote. She offered to treat the letter of 29/07/19 as a formal grievance. She noted that a number of issues had been raised and added that she believed they had been addressed previously and so did not intend to respond in any length. She did not refer to the point made about the content of the witness statements being unrelated to Ms Moorcroft. She accepted the resignation (590). 3.169. In that letter, for the first time, the offer made on 26/06/19 is set out. It was for her to be reinstated to a nurse position at a different location, and for a 3 month programme of development and support to address areas of performance that require improvement. Once she was confirmed as “fully developed”, a return to night duties would be considered. 3.170. Mrs Jones relies on her previous letter as to the reasons for not permitting Ms Moorcroft to return to work at Boldings, and, “There is not much that we can do given that you have submitted your resignation and do not wish to meet to discuss this matter further.” 3.171. Ms Fehilly confirms that a grievance can be considered after employment has been terminated. 3.172. Given a resignation with immediate effect on 7/07/19, a Sunday, the last day of employment was 8/07/19, when the resignation was seen. 3.173. Ms Moorcroft was not referred to the NMC nor did the Respondent write to say that no referral would be made. 4. Law Constructive Dismissal 4.1. A termination of the contract by the employee will constitute a dismissal within section 95(1)(c) of the Employment Rights Act 1996 (“ERA 1996”) if he or she is entitled to so terminate it because of the employer's conduct. That is a constructive dismissal. 4.2. For the employee to be able to claim constructive dismissal, the employee must establish that the following four conditions are met: i) There must be a breach of contract by the employer. ii) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. iii) The employee must leave in response to the breach and not for some other, unconnected reason. iv) The employee must not delay too long in terminating the contract in response to the employer's breach, otherwise he or she may be deemed to have waived the breach and agreed to the variation of the contract or affirmed it. 4.3. A repudiatory breach of contract is a significant breach, going to the root of the contract (Western Excavating (ECC) Ltd v Sharp

[1978] ICR 221

). That is to be decided objectively by considering its impact on the contractual relationship of the parties (Millbrook Furnishing Industries Ltd v McIntosh

(1981) IRLR 309

). The fact that the employer may genuinely believe that the breach is not repudiatory is irrelevant. 4.4. It also follows that there will be no breach simply because the employee subjectively feels that such a breach has occurred no matter how genuinely this view is held. If, on an objective approach, there has been no breach, then the employee's claim will fail (see Omilaju v Waltham Forest London Borough Council

[2005] EWCA Civ 1493

[2005] IRLR 35

). 4.5. Employment contracts contain an implied term of mutual trust and confidence. The parties to the contract will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust which should exist between employer and employee (Malik v BBCI SA (in liq)

[1998] AC 20

). 4.6. It is not simply about unreasonableness or unfairness. The question is whether the conduct complained of was likely to destroy or seriously damage the relationship of trust and confidence. 4.7. it is not necessary in each case to show a subjective intention on the part of the employee to destroy or damage the relationship, a point reaffirmed by the EAT in Leeds Dental Team Ltd v Rose

[2014] IRLR 8

, EAT. As Judge Burke put it: ''The test does not require a Tribunal to make a factual finding as to what the actual intention of the employer was; the employer's subjective intention is irrelevant. If the employer acts in such a way, considered objectively, that his conduct is likely to destroy or seriously damage the relationship of trust and confidence, then he is taken to have the objective intention spoken of…'' 4.8. The Court of Appeal in Lewis v Motorworld Garages Ltd

[1986] ICR 157

held that a course of conduct can cumulatively amount to a fundamental breach of contract entitling the employee to resign and claim constructive dismissal following a “last straw” incident, even though that incident by itself does not amount to a breach of contract. In Omilaju v Waltham Forest London Borough Council

[2005] ICR 481

,CA, it was stated that the last straw does not have to be of the same character as the earlier acts in the series, but it must contribute something to the breach of trust and confidence. 4.9. An employee who is the victim of a continuing, cumulative breach of contract is entitled to rely on the totality of the employer’s acts, notwithstanding a prior affirmation (Kaur v Leeds Teaching Hospitals NHS Trust,

[2019] ICR 1

, CA) (“Kaur”). In that case guidance is given on the approach for Tribunals: i) What is the most recent act (or omission) triggering resignation? ii) Has he or she affirmed the contract since that date? iii) If not, was that act or omission itself a repudiatory breach of contract? iv) If not, was it part of a course of conduct which viewed cumulatively amounts to a repudiatory breach of trust and confidence? v) Did the employee resign in response – or partly so – to that breach? 4.10. The general principles of contract law applicable to a repudiation of contract are that if one party commits a repudiatory breach of the contract, the other party can choose either to affirm the contract and insist on its further performance or he can accept the repudiation, in which case the contract is at an end. The innocent party must at some stage elect between these two possible courses: if he once affirms the contract, his right to accept the repudiation is at an end, but the election to affirm is not required within any specific period. 4.11. Delaying too long or, by conduct, indicating acceptance of the change, can point to affirmation. It is not simply a matter of time, in isolation. In WE Cox Toner (International) Ltd v Crook,

[1981] IRLR 443

, it is established that mere delay by itself (unaccompanied by any express or implied affirmation of the contract) does not constitute affirmation of the contract; but if it is prolonged it may be evidence of an implied affirmation. Simply continued working and the receipt of wages points towards affirmation. Nevertheless, if the innocent party further performs the contract to a limited extent but at the same time makes it clear that he is reserving his rights to accept the repudiation or is only continuing so as to allow the guilty party to remedy the breach, such further performance does not prejudice his right subsequently to accept the repudiation. Disability – as a protected ground 4.12. Disability is a protected characteristic under the Equality Act 2010, section 4. The Act says that a person has a disability if they have a physical or mental impairment which has a long-term and substantial adverse effect on their ability to carry out normal day-to-day activities. 4.13. Long-term means that the impairment has lasted or is likely to last for at least 12 months or for the rest of the affected person’s life. Substantial means more than minor or trivial (Schedule 1, paras 2 and 5). 4.14. There is no need for a medically diagnosed cause for the impairment. What is important is the effect, not the cause (Code of Practice in Employment, 2011, Appendix 1, para 7) 4.15. Someone who has or has had cancer is automatically treated as disabled. 4.16. Whether an impairment has lasted or is likely to last at least 12 months at the time of the discriminatory acts is to be judged by reference to facts and circumstances at the time of those acts and not later (Richmond Adult Community College v Richmond

[2008] EWCA Civ 4

). Direct Discrimination - section 13 4.17. Direct discrimination is provided for under the Equality Act 2010 (“EA 2010”) by section 13(1): “A person

(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’ 4.18. By section 39(2) of the EA 2010, ‘An employer (A) must not discriminate against an employee of A’s (B) (a) as to B’s terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

(c) by subjecting B to any other detriment.’ 4.19. The words “because of” mean that the protected characteristic must be a cause of the less favourable treatment, but it does not need to be the only or even the main cause. For it to be a significant influence or an effective cause is enough. 4.20. Motive or intention is not required. 4.21. Detriment does not require a physical or economic consequence; it is sufficient that a reasonable person might take the view that they have been disadvantaged: “Detriment exists if a reasonable worker would, or might, take the view that the treatment accorded to her had in all the circumstances been to her detriment. It is not necessary to demonstrate some physical or economic consequence.” (Shamoon v Chief Constable of RUC

[2003] IRLR 285

HL) 4.22. As the Equality Act Statutory Code of Practice on Employment (the “Code of Practice”), explains, at paragraph 3.5: ‘It is enough that the worker can reasonably say that they would have preferred not to be treated differently from the way the employer treated – or would have treated – another person.’ The comparator 4.23. Essential to the consideration of less favourable treatment is the question of comparison. 4.24. By section 23 of the EA 2010, “On a comparison of cases for the purposes of sections 13, 14 and 19, there must be no material difference between the circumstances relating to each case.” 4.25. This is dealt with by the Code of Practice at paragraphs 3.22 onwards. In disability cases, an appropriate comparator, according to the Code, at paragraph 3.20 “will be a person who does not have the disabled person’s impairment but who has the same abilities or skills as the disabled person (regardless of whether those abilities or skills arise from the disability itself).” 4.26. The other approach is to say but for the relevant protected characteristic, would the claimant have been treated in this way? That may be helpful in identifying a hypothetical comparator (Code of Practice, 3.27). Discrimination arising from disability – section 15 4.27. By section 15(1) of the EA 2010, “A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.” 4.28. The Code of Practice sets out at paragraph 5.7 that this means placing someone at a disadvantage. Even if an employer thinks they are acting in the best interests of a disabled person, they may still treat that person unfavourably. 4.29. By section 15(2) of the EA 2010, the above does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the 4.30. The focus of section 15 is about the extent to which the employer is required to make allowances for disability (General Dynamics Information Technology v Carranza

[2015] EAT 0107

). The consequences of a disability include anything that is the result, effect or outcome of a disabled person’s disability. 4.31. There are four elements for a claimant to succeed in a section 15 claim.

• There must be unfavourable treatment

• There must be something that arises in consequence of the claimant’s

• The unfavourable treatment must be because of (ie, caused by) the something that arises in consequence of the disability, and

• The respondent cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim. 4.32. There is no requirement for a comparator. 4.33. The analysis required is explained in Basildon v Turrock NHS Foundation Trust v Weerasinghe

[2015] UKEAT 0397

[2016] ICR 305

. There are two causative steps to be established. The first is that the disability has the consequence of “something”. It causes “something” or leads to “something”. That might be, for example, a need for frequent visits to the toilet, or a difficulty in speaking to strangers on the telephone. The second is that the claimant is treated unfavorably because of that “something”; the treatment arises in consequence of it. 4.34. It does not matter in which order that is addressed. Either way, the reason for the treatment and what it is that arises from the disability have to be addressed. 4.35. Simler P in Pnaiser v NHS England

[2016] IRLR 170

, EAT, gave the following guidance as to the correct approach to a claim, adopting and developing the guidance in Weerasinghe. '(a) 'A tribunal must identify the unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises. (b) The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. The “something” that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. (c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or she did is simply irrelevant:

(d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is 'something arising in consequence of B's disability'. This involves an objective question and does not depend on the thought processes of the alleged discriminator. 4.36. If an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for them to show that the treatment was objectively justified” (para 5.21 Code of Practice). 4.37. In terms of burden of proof, in a section 15 claim, in order to prove a prima facie case of discrimination, the claimant will need to show:

• That she has been subjected to unfavourable treatment

• That she is disabled and that the employer had actual or constructive knowledge of this

• A link between the disability and the “something” that is said to be the ground for the unfavourable treatment

• Some evidence from which it could be inferred that the “something” was the reason for the treatment. 4.38. In Cummins Ltd v Mohammed (

UKEAT/0039/20

/00), the Tribunal is reminded that it is essential to consider why the decision-maker acted as he or she did: what is the reason for the impugned treatment? 4.39. If unfavourable treatment is because of something arising in consequence of the disability, it will be unlawful unless it can be objectively justified, or unless the employer did not know and could not reasonably have been expected to know that the person was disabled. If the employer can show that the reasons for the unfavourable treatment arose from another cause, and not the “something” arising in consequence of the disability, that is a further basis for defeating the claim. Indirect Discrimination - section 19 4.40. Indirect discrimination is defined in section 19 of the Equality Act 2010 in this way: “(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice (“PCP”) which is discriminatory in relation to a relevant protected characteristic of B’s. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if - (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.” 4.41. Subsection (3) lists the relevant protected characteristics, which include disability. 4.42. All four conditions in subsection (2) must be met before a successful claim for indirect discrimination can be established. In other words, there must be a PCP which the employer applies or would apply to employees who do not share the protected characteristic of the claimant; that PCP must put people who share the claimant’s protected characteristic (here, disability) at a particular disadvantage when compared with those who do not share that characteristic; the claimant must experience that particular disadvantage; and the employer must be unable to show that the PCP is justified as a proportionate means of achieving a legitimate aim. 4.43. It is for the claimant to establish that the first three elements apply – that there is a PCP applied to a pool, that it disadvantages those sharing the protected characteristic generally and that creates a particular disadvantage to the claimant. At that point, it is for the respondent to justify the PCP as a proportionate means of achieving a legitimate aim. 4.44. In Essop v Home Office, Supreme Court, [2017] 1 WLR, the difference between direct and indirect discrimination is explained by Lady Hale, as follows. “Direct discrimination expressly requires a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination does not. Instead it requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual. The reason for this is that the prohibition of direct discrimination aims to achieve equality of treatment. Indirect discrimination assumes equality of treatment - the PCP is applied indiscriminately to all - but aims to achieve a level playing field, where people sharing a particular protected characteristic are not subjected to requirements which many of them cannot meet but which cannot be shown to be justified. The prohibition of indirect discrimination thus aims to achieve equality of results in the absence of such justification. It is dealing with hidden barriers which are not easy to anticipate or to spot. – (Essop, para 25) “…The reasons why one group may find it harder to comply with the PCP than others are many and various (Mr Sean Jones QC for Mr Naeem called them “context factors”). They could be genetic, such as strength or height. They could be social, such as the expectation that women will bear the greater responsibility for caring for the home and family than will men. They could be traditional employment practices, such as the division between “women’s jobs” and “men’s jobs” or the practice of starting at the bottom of an incremental pay scale.” “These various examples show that the reason for the disadvantage need not be unlawful in itself or be under the control of the employer or provider (although sometimes it will be). They also show that both the PCP and the reason for the disadvantage are “but for” causes of the disadvantage: removing one or the other would solve the problem. (para 26)” “…There is no requirement that the PCP in question put every member of the group sharing the particular protected characteristic at a disadvantage. The later definitions cannot have restricted the original definitions, which referred to the proportion who could, or could not, meet the requirement. Obviously, some women are taller or stronger than some men and can meet a height or strength requirement that many women could not. Some women can work full time without difficulty whereas others cannot. Yet these are paradigm examples of a PCP which may be indirectly discriminatory. (Essop, para 27) 4.45. It is not necessary to show why the PCP puts people sharing a protected characteristic at a disadvantage (Essop) The key element is the causal link between the PCP and the particular disadvantage suffered by the group and the individual. 4.46. For the purposes of assessing the impact of the PCP on the group sharing the protected characteristic as against the wider group, the pool of all those affected by the PCP has to be identified. The Statutory Code of Practice (2011), prepared by the Equality and Human Rights Commission under section 14 of the Equality Act 2006, at para 4.18, advises that: “In general, the pool should consist of the group which the provision, criterion or practice affects (or would affect) either positively and negatively, while excluding workers who are not affected by it, either positively or negatively.” 4.47. In other words, all the workers affected by the PCP in question should be considered. 4.48. The comparison must then be made with those sharing the protected characteristic. The Code at paragraph 4.19, says this, “Looking at the pool, a comparison must be made between the impact of the provision, criterion or practice on people without the relevant protected characteristic and its impact on people with the protected characteristic.” 4.49. What is being considered is the particular disadvantage suffered by the group sharing the protected characteristic when the PCP is applied, that is, the disparate impact on that group as against the wider group. The test considers the intrinsic disadvantage to the group with the protected characteristic arising from the general application of the PCP to the wider pool. 4.50. In the context of disability, it is not straightforward to identify the disadvantaged group. By section 6(3)(b) of the Act, in relation to disability, a reference to persons who share a protected characteristic is a reference to persons who have the same disability. There is no room for easy assumptions that people who have the same disability can be regarded as having the same difficulties. A disabled person can bring a claim even where no other employees share the same disability, but there must be some evidence that the disability and its relevant effects are in fact shared by others, unless the matter is so obvious that Judicial Notice can be taken. 4.51. Judicial notice is the name given to common knowledge that is accepted by a court or tribunal as being so well known and accepted as to not require evidence to support it. 4.52. Indirect discrimination on the grounds of disability does not depend on an employer’s knowledge or constructive knowledge of the claimant’s disability. 4.53. A PCP is justified if the employer can show that it is a proportionate means of achieving a legitimate aim. In Hampson v Department of Education and Science [1989] in the Court of Appeal, Lord Justice Balcombe said the true test involved striking “an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition”. 4.54. As Mummery LJ explained in R (Elias) v Secretary of State for Defence

[2006] EWCA Civ 1293

[2006] 1 WLR 3213

, at [151]: ". . . the objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. So it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group." 4.55. He went on, at [165], to commend the three-stage test for determining proportionality derived from de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing

[1999] 1 AC 69

, 80: -

• Is the objective sufficiently important to justify limiting a fundamental right?

• Is the measure rationally connected to the objective?

• Are the means chosen no more than is necessary to accomplish the objective? Failure to make reasonable adjustments - section 20 4.56. The EA 2010, by section 39(5), imposes a duty on employers to make reasonable adjustments. 4.57. The duty is set out at section 20 of the EA 2010. 4.58. The duty comprises three requirements. Here the first is relevant and that applies where a provision, criterion or practice of A’s (the employer) 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. 4.59. A failure to comply with those requirements is a failure to make reasonable adjustments. By section 21(1) and (2), “A discriminates against a disabled person if A fails to comply with that duty in relation to that person”. 4.60. The duty does not arise where A did not know and could not reasonably be expected to know that B has a disability and is likely to be placed at the disadvantage referred to – that is the effect of schedule 8, paragraph 20, as amended, to the EA 2010. However, the employer must do all they can reasonably be expected to do to find out whether a worker has a disability and is, or is likely to be, placed at a substantial disadvantage. So, knowing of a condition such as dyslexia, the employer has a duty to do what it reasonably can to establish the effects of that and so avoid the risk of a substantial disadvantage arising. 4.61. Guidance is given in the ACAS Code of Practice in Employment (2011), at paragraph 6.19, What is reasonable to do will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially. 4.62. The following example is then given, “A worker who deals with customers by phone at a call centre has depression which sometimes causes her to cry at work. She has difficulty dealing with customer enquiries when the symptoms of her depression are severe. It is likely to be reasonable for the employer to discuss with the worker whether her crying is connected to a disability and whether a reasonable adjustment could be made to her working arrangements.” 4.63. In Wilcox v Birmingham CAB Services Ltd [2011] Eq:R.S810, the EAT took the view that unless the employer had actual or constructive knowledge of the disability, the question of substantial disadvantage did not arise. An employer will be taken to have the requisite knowledge provided that they are aware of the impairment and its consequences. There is no need for them to be aware of the specific diagnosis (Jennings v Barts and the London NHS Trust [2013] Eq:R 326 EAT). If an agent or employee knows in that capacity of a worker’s disability, the employer will not usually be able to claim that they do not know (see para 6.21 of the Code). 4.64. Where a disabled person keeps a disability confidential, no duty arises for the employer “unless the employer could reasonably be expected to know about it anyway.” (Code para 6.20) 4.65. And, “If a disabled person expects an employer to make a reasonable adjudgment, they will need to provide the employer … with sufficient information to carry out that adjustment.” 4.66. No like for like comparator is required – the comparison may be between those who could do the job and the disabled person. As explained in Royal Bank of Scotland v Ashton (

[2011] ICR 632

), the tribunal must identify the non-disabled comparator or comparators. That may be a straightforward exercise, “In many cases, the facts will speak for themselves and the identity of the non-disabled comparators will be clearly discernible from the provision, criterion or practice found to be in play.” (Fareham College Corporation v Walters (

[2009] IRLR 991

) 4.67. There is no onus on the disabled worker to suggest what adjustments ought to be made. It is good practice for employers to ask. If the disabled person does make suggestions, the employer should consider whether such adjustments would help overcome the substantial disadvantage and whether they are reasonable. (Code of Practice para 6.24) 4.68. It is a good starting point for an employer to conduct a proper assessment, in consultation with the disabled person concerned, of what reasonable adjustments may be required. … It is advisable to agree any proposed adjustments with the disabled worker in question before they are made. (Code of Practice para 6.32.) 4.69. In considering whether there has been a failure to make reasonable adjustments, the tribunal must identify the nature and extent of the substantial disadvantage relied on by the claimant; make positive findings as to the state of the respondent’s knowledge of the nature and extent of that disadvantage and assess the reasonableness of the adjustment that it is said could and should have been taken in that context. 4.70. The process for the Tribunal therefore is to identify: (a) the employer’s provision, criterion or practice which causes the claimant ’s disadvantage (b) the identity of the persons who are not disabled with whom comparison is made (c) the nature and extent of the substantial disadvantage suffered by the employee (d) what step or steps it is reasonable for the employer to have to take to avoid the disadvantage (General Dynamics Information Technology Ltd v Carranza

[2015] IRLR 43

). 4.71. The Tribunal must identify all of those to judge whether the proposed adjustment is reasonable. There is no need to find that the adjustment would have prevented the adverse effects. The Tribunal is entitled to find that the adjustment proposed was a reasonable option with a not unreasonable chance of success (The Environment Agency v Rowan

[2008] IRLR 20

). 4.72. Assessing the reasonableness of any particular step, relevant factors will be how effective it will be in preventing the substantial disadvantage, how practicable it is, how much it will cost and how disruptive it may be, the size and resources of the employer and the nature of the business. It may also be relevant that external resources are available to help provide adjustments (Code para 6.28). 4.73. Failure to make a reasonable adjustment cannot be justified, but only reasonable steps fall within the duty. Whether or not adjustments were reasonable in the circumstances is to be determined by the employment tribunal objectively, (HM Land Registry v Wakefield [2009] All E R 205 (EAT). Harassment - section 26 4.74. By section 26(1) of the EA 2010, “A person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.” 4.75. In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must, by section 26(4), be taken into account – “(a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.” 4.76. Harassment is discussed in Chapter 7 of the Code of Practice. Paragraph 7.8 explains that, “The word ‘unwanted’ means essentially the same as ‘unwelcome’ or ‘uninvited’. ‘Unwanted’ does not mean express objection must be made to the conduct before it is deemed to be unwanted. A serious one-off incident can also amount to harassment.” 4.77. Paragraph 7.9 explains that “related to” has a broad meaning, in that the conduct does not have to be “because of” the protected characteristic. In content or context, the question is, is the conduct anything to do with the disability? 4.78. Section 26(4) is more fully discussed at paragraph 7.18 of the Code. The perception of the worker is a subjective question and depends on how the worker regards the treatment. 4.79. In paragraph 15 of Richmond Pharmacology v Dhaliwal 2009 [IRLR] 336, the nature of harassment is explored in similar terms: “The proscribed consequences are, of their nature, concerned with the feelings of the putative victim; that is, the victim must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created. That can, if you like, be described as introducing a “subjective” element; but overall the criterion is objective because what the tribunal is required to consider is whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so. ….It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence….:” 4.80. The concept of detriment does not include conduct that amounts to harassment (EA 2010, s212(1)). Harassment and direct discrimination claims are therefore usually mutually exclusive. Victimisation and harassment too are mutually exclusive, given that section 27 of the Act specifically refers to detriment as part of the definition of victimisation. However, unfavourable treatment in section 15 (discrimination arising from disability) is not to be equated with detriment (The Trustees of Swansea University Pension and Assurance Scheme, Swansea University v Mr A Williams (

UKEAT/0415/14/DM

) Victimisation - section 27 4.81. Section 27(1) of the EA 2010 provides that: “A person (A) victimises another person (B) if A subjects B to a detriment because – B does a protected act . . .” 4.82. A protected act includes bringing proceedings under the Act: s 27(2). There is no concept of less favourable treatment as such in this formulation of the wrong. However, if a tribunal finds that the reason for particular conduct adverse to an employee is victimisation, there is implicit in that conclusion a finding that but for having taken the protected act, the employee would have been treated more favourably. Burden of proof 4.83. By section 136(2) and (3) of the EA 2010, the test in respect of the burden of proof is set out: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (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.’ 4.84. The switching of the burden of proof is simply set out in the Code at para 15.34: “If a claimant has proved facts from which a tribunal could conclude that there has been an unlawful act, then the burden of proof shifts to the respondent. To successfully defend a claim, the respondent will have to prove, on balance of probability, that they did not act unlawfully. If the respondent’s explanation is inadequate or unsatisfactory, the tribunal must find that the act was unlawful.” 4.85. For the burden of proof to shift, the claimant must show facts sufficient – without the explanation referred to – to enable the tribunal to find discrimination. The Barton guidelines as amended in the Igen case (Igen v Wong,

2005 IRLR 258

CA), remain the basis for applying the law notwithstanding the re-enactment of discrimination legislation in the 2010 Act. It is those guidelines that establish the two-stage test, “The first stage requires the complainant to prove facts from which the Employment Tribunal could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld (Peter Gibson LJ, para 17, Igen) 4.86. The Tribunal is required to make an assumption at the first stage which may be contrary to reality. 4.87. In Hewage v Grampian Health Board

[2012] UKSC 37

, the application of the Barton/Igen guidelines to cases under the EA 2010 is approved at the highest level. At paragraph 33, Lord Hope, on the burden of proof provisions, says, “They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence…” 4.88. In Laing and Manchester City Council and others,

2006 IRLR 748

, the correct approach in relation to the two-stage test is discussed, “No doubt in most cases it will be sensible for a tribunal formally to analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case…. (para 73) The focus of the tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer race (or other) discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a tribunal to say, in effect, ‘there is a nice question as to whether the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race’. 4.89. The nub of the question remains why the claimant was treated as he or she was: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.” (Madarassy v Nomura International plc)

2007 IRLR 246

). 4.90. In that case, in a judgment later approved by the Supreme Court in Hewage, above, Mummery LJ pointed out that the employer should be able to adduce at stage one evidence to show “that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant.” 4.91. The “something more” that may lead a Tribunal to move beyond the difference in status and treatment need not be substantial – it may be derived from the factual context including inconsistent or dishonest explanations (see Base Childrenswear Ltd v Otshudi

2019 EWCA Civ 1648

CA; Veolia Environmental Services UK v Gumbs EAT 0487/12. 4.92. The presence of discrimination is almost always a matter of inference rather than direct proof – even after the change in the burden of proof, it is still for a claimant to establish matters from which the presence of discrimination could be inferred, before any burden passes to his or her employer. 4.93. In drawing inferences, an uncritical belief in credibility is insufficient’ as Sedley LJ pointed out in Anya v University of Oxford

2001 IRLR 377

CA (paragraph 25) it may be very difficult to say whether a witness is telling the truth or not. Where there is a conflict of evidence, reference to the objective facts and documents, to the likely motives of a witness and the overall probabilities can give a court very great assistance in ascertaining the truth. 4.94. In Talbot v Costain Oil, Gas and Process Ltd and ors 2017 ICR D11, EAT, His Honour Judge Shanks — having looked at the relevant authorities — summarised the following principles for employment tribunals to consider when deciding what inferences of discrimination may be drawn:

• it is very unusual to find direct evidence of discrimination

• normally an employment tribunal’s decision will depend on what inference it is proper to draw from all the relevant surrounding circumstances, which will often include conduct by the alleged discriminator before and after the unfavourable treatment in question

• it is essential that the tribunal makes findings about any ‘primary facts’ that are in issue so that it can take them into account as part of the relevant circumstances

• the tribunal’s assessment of the parties and their witnesses when they give evidence forms an important part of the process of inference

• assessing the evidence of the alleged discriminator when giving an explanation for any treatment involves an assessment not only of credibility but also of reliability, and involves testing the evidence by reference to objective facts and documents, possible motives and the overall probabilities

• where there are a number of allegations of discrimination involving one person, conclusions about that person are obviously going to be relevant in relation to all the allegations

• the tribunal must have regard to the totality of the relevant circumstances and give proper consideration to factors that point towards discrimination in deciding what inference to draw in relation to any particular unfavourable treatment

• if it is necessary to resort to the burden of proof in this context, S.136 EA 2010 provides, in effect, that where it would be proper to draw an inference of discrimination in the absence of ‘any other explanation’, the burden lies on the alleged discriminator to prove there was no discrimination. 4.95. Unreasonable conduct or poor management does not of itself point to discrimination. There must be indications from the evidence that point to the unreasonable conduct relating to the prohibited ground (Laing v Manchester City Council and anor

2006 ICR 1519

, EAT). 4.96. In Glasgow City Council v Zafar

1998 ICR 120

, HL, Lord Browne-Wilkinson considered that ‘the conduct of a hypothetical reasonable employer is irrelevant. The alleged discriminator may or may not be a reasonable employer. If he is not a reasonable employer, he might well have treated another employee in just the same unsatisfactory way as he treated the complainant, in which case he would not have treated the complainant “less favourably”.’ His Lordship also approved the words of Lord Morison, who delivered the judgment of the Court of Session, that ‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances’. 4.97. Equally, it cannot be simply inferred that the fact that an employer has acted unreasonably towards one employee means it would have acted the same way towards others. A failure to explain unreasonable conduct by the employer can support an inference of discrimination. If an employer acts in a wholly unreasonable way, it may be inferred that the explanation offered is not the true or full explanation (Rice v McEvoy 2011 NICA 9 NICA). In all cases, the drawing of inferences involves careful consideration of the surrounding facts:. “Facts will frequently explain, at least in part, why someone has acted as they have” (Elias P in Laing (above). 4.98. However, ‘Merely because a tribunal concludes that an explanation for certain treatment is inadequate, unreasonable or unjustified does not by itself mean the treatment is discriminatory, since it is a sad fact that people often treat others unreasonably irrespective of race, sex or other protected characteristic.’ Simler P, Chief Constable of Kent Constabulary v Bowler EAT 0214/16 4.99. As stated by the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, HL, an unjustified sense of grievance does not point to less favourable treatment. 4.100. Where a case consists of several allegations, the Tribunal must consider each separately to determine whether less favourable treatment occurred by comparison with others, so as to shift the burden of proof, rather than taking a broad-brush approach in respect of all the allegations (Essex County Council v Jarrett EAT 0045/15). Time Limits 4.101. Section 123 of the EA 2010 sets out the period within which proceedings are to be brought. 4.102. Proceedings on a complaint within section 120 may not be brought after the end of: (a) the period of 3 months starting with the date of the act to which the complaint relates or b) such other period as the employment tribunal thinks just and equitable. That means that a claim must be presented before the end of the three-month period beginning when the act complained of was done. 4.103. By section 123(3), “ For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. 4.104. By section 123(4) “In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. 4.105. In Hendricks v Metropolitan Police Commissioner [2002) EWCA Civ 1686, in particular paragraphs 51 and 52, continuing acts are explored, concluding simply, “The question is whether there is an act extending over a period as distinct from a succession of unconnected or isolated specific acts for which time would begin to run from the date when each specific act was committed.” 4.106. The question is whether the employer is responsible for “an ongoing situation or continuing state of affairs” in which the members of the defined group are treated less favourably. It is wrong to pay close attention to words such as 'policy', 'rule', 'practice', 'scheme' or 'regime', as these are but examples of when an act extends over a period. 4.107. In Hale v Brighton and Sussex University Hospitals NHS Trust (EAT 0342/16), it was held that a decision to commence a disciplinary investigation was not to be treated as a one off act where it led to disciplinary procedures and ultimately dismissal. A relevant but not conclusive factor is whether the same or different individuals were involved in the incidents. 4.108. However, citing Hendricks, Choudhary P in South Western Ambulance NHS Foundation Trust v King

[2020] IRLR 168

warned '… that reliance cannot be placed on some floating or overarching discriminatory state of affairs without that state of affairs being anchored by specific acts of discrimination occurring over time. The claimant must still establish constituent acts of discrimination or instances of less favourable treatment that evidence that discriminatory state of affairs.' (at [36]) 4.109. The time limits for bringing claims are extended by section 140B of the Equality Act to facilitate conciliation before the institution of proceedings. 4.110. Section 140B sets out that extension, as follows. “In this section— (a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and (b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section. (3) In working out when the time limit set by section 123(1)(a) or 129(3) or (4) expires the period beginning with the day after Day A and ending with Day B is not to be counted. (4) If the time limit set by section 123(1)(a) or 129(3) or (4) would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period. 4.111. The day on which the claimant complies with the requirement to provide information to ACAS is (“Day A”). The period between the day after Day A and ending with the day on which the claimant receives or is treated as having received the conciliation officer’s certificate (“Day B”) is not counted in computing time for the purposes of time limits. 4.112. Once early conciliation has ended, the claimant has at least one calendar month to present the claim. “One month” means on the 'corresponding date' so where day B is 30 June, the time limit will expire on 30 July (Tanveer v East London Bus & Coach Co Ltd [2016]. 4.113. If a time limit would otherwise expire during the period, beginning with Day A and ending one month after Day B, the time limit expires one month after Day B, on the corresponding day. 4.114. If the time limit would otherwise expire after the period of one month after day B, then time is extended by a period equivalent to the early conciliation period – that is, the period from the day after Day A and ending with Day B. 5.

List of issues

[50](HL)) in any event or for contributory conduct. Ability to pay is not a consideration. 4.5. Compensation may be awarded beyond retirement age if the evidence shows that the employee would have stayed on past that age (Barrel Plating and Phosphating Co Ltd v Danks

1976 ICR 503

EAT) 4.6. By section 124 of the ERA 1996, compensation is capped, including at the level of one year’s gross salary, if lower than the current statutory cap. The cap does not apply to an automatically unfair dismissal under sections s100, 103A, 105(3) 105(6A). Those are protected disclosure and health and safety cases. 4.7. There can be no award for the manner of the dismissal. The award does not attract interest. No award can be made for injury to feelings or personal injury. , Discrimination Remedy 4.8. Section 124 of the Equality Act 2010 (“EA 2010”) provides by way of remedy for discrimination, a declaration, as given in making the initial judgment, financial compensation and scope to make recommendations. 4.9. An order for monetary compensation is only made where it is just and equitable to do so. The measure of damages is the same as it would be in a civil court. There is no upper limit on what can be awarded. 4.10. Where compensation is awarded, it is on the basis that “as best as money can do it, the claimant must be put into the position she would have been in but for the unlawful conduct of [her employer”]' (Ministry of Defence v Cannock

[1994] IRLR 509

, EAT, per Morison J at 517,

[1994] ICR 918

, EAT). 4.11. Losses must be attributable to the specific acts of discrimination found by the Tribunal based on the pleaded claim. 4.12. Heads of damages include pecuniary losses, that is, personal financial losses, and non-pecuniary losses, such as injury to feelings and in some cases personal injury. Financial losses include loss of earnings and benefits derived from the employment. Where failure to mitigate is demonstrated, a deduction can be made in respect of earnings that were not but should have been achieved. 4.13. It is rare to assess compensation over a career lifetime. The usual approach is to assess loss up to a point where a Tribunal is satisfied, having regard to all the uncertainties and vagaries of life, that the individual is likely to get an equivalent job. There is a speculative nature to this, since it calculation is both speculative and predictive. There is no certainty about what will happen, but rather a range of possibilities and chances of different things occurring. The assessment is not a question of fact, but a question of carrying out an assessment on the basis of the Tribunal’s best estimate about the future. 4.14. The task is to put the employee in the position he or she would have been in had there been no discrimination. The fact that there has been a discriminatory dismissal means that the employee is on the labour market at a time and in circumstances which are not of his own choosing. It does not follow therefore that their prospects of obtaining a new job are the same as they would have been had he or she stayed where they were. in addition, there may be stigma by reason of taking proceedings, and that may have some effect on the chances of obtaining future employment. (Chagger v Abbey National plc & anor

[2009] EWCA Civ 1202

(“Chagger”) Vento v Chief Constable of West Yorkshire Police (No 2)

[2003] IRLR 102

[2003] ICR 318

(“Vento”)). 4.15. When an act of discrimination results in the loss of employment, for example, a tribunal will have to calculate future loss, and in so doing have to make decisions about the chances that employment would have continued had the discrimination not taken place. It is important that this is done by reference to calculating the percentage probabilities, and not on a simple balance of probabilities (Chagger). The assessment must be made by focusing on the degree of chance and not on a balance of probabilities approach; in other words, it would be wrong to conclude that something was more likely than not to have happened and then to deem it to have happened rather than considering the chance of it happening and applying a percentage factor to reflect that chance (Chagger). 4.16. For personal injury, the Claimant will need to demonstrate that the discriminatory acts actually caused the psychiatric or other damage in order to prove liability and be awarded compensation. There is no absolute requirement for medical evidence, such evidence is particularly valuable in explaining causation. There is a risk of double counting with the injury to feelings award, given that it is not always easy to identify where injury to feelings ends and physical or psychiatric injury starts. 4.17. When it comes to the assessment of damages in relation to a proven psychiatric injury, tribunals are required to approach the assessment of damages on the same basis as a common law court in an ordinary action for personal injuries (HM Prison Service v Salmon

[2001] IRLR 425

). 4.18. There is no rule that the losses must be reasonably foreseeable. The losses are those of the individual claimant, having regard to his or her personal circumstances and the consequences of the unlawful conduct. 4.19. The Vento case is the source of guidance on the level of compensation for injury to feelings which have since been updated by Da Bell v NSPCC and Simmons v Castle (

[2013] 1 All ER 334

), but are still referred to as the “Vento” Guidelines. They identify three broad bands of compensation for injury to feelings as distinct from psychiatric or personal injury. 4.20. Having regard to the Presidential guidance issued by the Presidents of the Employment Tribunals issued in in respect of claims issued after 6/04/20, The lower band is for less serious acts of discrimination. Awards in this band are currently between £900 - £9000 4.21. The middle band is for cases which are more serious but do not come into the top band. These awards tend to be from £9000 to £27,200 4.22. The top band is for the most serious cases such as where there has been a lengthy campaign of harassment. These awards are between £27,200 and £45,000, but are relatively rare. 4.23. A case would have to be highly exceptional for any sum higher than this to be awarded. 4.24. This claim was presented on 26 November 2019 4.25. At that time the relevant Presidential Guidance, for claims presented on or after 6 April 2019, was – Lower £900 to £8,800 Middle £8,800 to £26,300 Top £26,300 to £44,000 4.26. There can be no double recovery, so where different claims or different heads of damages might lead to overlapping awards, the overall award must be a sensible reflection of the assessment, avoiding compensating for the same loss more than once. 4.27. Section 207A TULRCA can apply to discrimination awards, if there is a breach of a relevant ACAS Code of Practice as part of an act of discrimination. The Code of Practice is that on Disciplinary and Grievance procedures. 4.28. The power to make such an uplift raises different issues and needs to be considered separately to questions of injury to feelings and aggravated damages (Mr Q QU v Landis & Gyr Limited

UKEAT/0016/19/RN

) 4.29. In Allma Construction Ltd v Laing UKEATs/0041/11 25/01/12, Lady Smith suggested a tribunal should approach an uplift under this section in this way, - Does a relevant Code of Practice apply - Has the employer failed to comply and how - Was the failure unreasonable and why - Is it then just and equitable in all the circumstances to increase the award and why - If so by how much and why. 4.30. In Mr Q Qu v Landis & Gyr Ltd, it was argued but not accepted that the ACAS Code prescribes minimum procedural standards in a disciplinary and grievance context, rather than considering the quality of the Respondent’s decision making. However in that case it was held that the findings made by the Tribunal were not about the quality of decision making but failings in the process that was adopted, and an implicit finding that the grievances were not considered in good faith. There was a breach of the Code, even though the formally correct steps had been taken. 4.31. In considering what is just and equitable to order under section 207A, the Tribunal must have regard to the overall size of the award and what is proportionate. The breach of the Code of Practice must be identified. The award is the just and equitable amount up to 25%. 4.32. Interest is calculated as simple interest. The current statutory rate is 8%. (1/365 or 0.00273973 per day). The period of accrual of interest in injury to feelings runs from the act of discrimination to the hearing. For other sums it is from the mid-point of the period since the act of discrimination. Aggravated Damages 4.33. Aggravated damages may be awarded in particularly serious cases of discrimination. They are compensatory only and should not be awarded to punish the respondent. 4.34. They are seen as part of injury to feelings and Tribunals should avoid compensating claimants under both heads for the same loss. 4.35. The ultimate question according to the then President of the EAT, Mr Justice Underhill, in Commissioner of Police of the Metropolis v Shaw

[2012] ICR 464

EAT is whether the overall award is proportionate to the totality of the claimant’s suffering. It is an aspect of injury to feelings reflecting the making more serious the injury to feelings by some additional element which would fall into one of three categories(a) the manner in which the wrong was committed, that is, where it is done in an exceptionally upsetting way – high-handed, malicious, insulting or oppressive way

(b) bad motive, provided that the claimant was aware of it , for example conduct based on, prejudice, animosity spite or vindictiveness is likely to cause more distress

(c) Subsequent conduct, such as where the defence is conducted at a trial in an unnecessarily offensive manner, a serious complaint is not taken seriously, where there is a failure to apologise, or the respondent has defended in a way that is wholly inappropriate and intimidatory. 4.36. The actions are not required of themselves to be discriminatory 4.37. Tribunals must to be wary of focusing on the quality of the respondent’s conduct – that is, assuming that the more heinous the conduct, the more devastating its impact on the claimant. Tribunals must not lose sight of the ultimate purpose of aggravated damages, which is to compensate for the additional distress caused to the claimant by the aggravating features in question. The award must overall be fair and proportionate, in respect of nonpecuniary loss. Grossing up 4.1. The effect of income tax must be taken into account in the assessment of damages. 4.2. Grossing up provides an estimate of the tax payable on this award, in this financial year, so that the claimant receives what the tribunal has found to be due, in full, having had to pay tax required . The aim is to get to a figure that will leave the claimant with the sums intended by the Tribunal. 4.3. Where compensation for injury to feelings is included in a termination payment, it is taxable under s406 ITEPA to the extent that the £30,000 allowance has been exceeded. 4.4. The relevant tax year is the year in which the award is received by the claimant Wrongful Dismissal Remedy 4.1. The sum due in respect of wrongful dismissal is the notice pay to which the Claimant was entitled. Where there are concurrent wrongful and unfair dismissal claims, the tribunal has a choice as to how to proceed in calculating compensatory awards. It is a matter for the discretion of the tribunal as to whether the unfair dismissal compensatory award is calculated before deducting the sum due for the wrongful dismissal. If calculated in that way, the ACAS uplift would apply in respect of the whole period of loss (Shifferaw v Hudson Music Co Ltd UKEAT 0294/15/DA). The same applies in respect of wrongful dismissal and the financial loss element of discrimination. The same loss cannot be compensated in two jurisdictions: there cannot be double counting. Preparation Time 4.2. Under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013/1237, Schedule 1, Rule 76, “(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; ….” 4.3. By Rule 75(2), a preparation time order is an order that a party (“the paying party”) make a payment to another party (“the receiving party”) in respect of the receiving party’s preparation time while not legally represented. “Preparation time” means time spent by the receiving party (including by any employees or advisers) in working on the case, except for time spent at any final hearing. 4.4. Awards of costs are intended to be compensatory, not punitive (Lodwick v Southwark LBC [2004]. 4.5. An award does not automatically follow on a finding of unreasonable conduct. There remains a broad discretion and it must be exercised judicially (Oni v Unison

UKEAT/0371/14/LA

2015, “Oni”). The Tribunal should take into account the “nature, gravity and effect of a party’s unreasonable conduct.” In McPherson v BNP Paribas (London Branch)

2004 ICR 1398

CA, Lord Justice Mummery gave guidance that the costs-seeking party is not required to prove that specific unreasonable conduct by the other party caused particular costs to be incurred. In D’Silva v NATFHE (Now known as University and College Union) and ors EAT 0126/09, the EAT confirmed that it was not necessary to establish a direct causal link between the unreasonable conduct and the amount of costs ordered. 4. 6.There is therefore no requirement that the costs awarded must be found to have been caused by or attributable to the unreasonable conduct found, though causation is not irrelevant. In Barnsley Metropolitan Borough Council v Yerravalka

[2012] IRLR 42

, the following guidance is given, “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct. …and in doing so, to identify the conduct, what was unreasonable about it and what effects it had.” 4.7. The Tribunal has a broad discretion and should avoid adopting an overanalytical approach. The means of a paying party may be considered twice: first in considering whether to make an award of costs; secondly, if an award is to be made in deciding how much should be awarded (Oni). 4.8. Under S12A ETA 1996, where the employer has breached any of the worker’s rights and it is of the opinion that the breach has “one or more aggravating features”, the Tribunal may award a penalty, payable to the Secretary of State. According to the explanatory notes, the Tribunal may consider the size of the employer, the duration of the breach, the behaviour of the employer and employee as well as whether the action was deliberate or committed with malice, whether the employer was an organisation with a dedicated human resources team or the employer had repeatedly breached the employment right concerned. 4.9. By section 12A(5), the amount of the penalty in this case would be £20,000. 5. Submissions 5.1. Mr Henman spoke to his written submission. 5.2. Mr Williams addressed only the 25% uplift contended for under TULRCA and the preparation time order. 5.3. They were both helpfully concise. 6.

Findings of Fact

[51]In Outasight VB Ltd v Brown 2015 ICR D11, EAT, Her Honour Judge Eady QC, accepted that the wording “necessary in the interests of justice” in rule 70 allows employment tribunals a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances, “which means having regard not only to the interests of the party seeking the review or reconsideration, but also the the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.”

[52]There is an underlying public policy principle in all proceedings of a judicial nature that there should be finality in litigation (Flint v Eastern Electricity Board

[1975] ICR 395

at page 401). In Stevenson v Golden Wonder Ltd

1977 IRLR 474

, Lord McDonald said of the previous review provisions that they were “not intended to provide parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis, or further evidence adduced which was available before”. The weight and importance given to the finality of litigation, was endorsed in Newcastle Upon Tyne City Council v Marsden [2010 ICR 743 and in the Court of Appeal in Ministry of Justice v Burton

[2016] EWCA Civ 714

. Fresh evidence

[53]The case of Ladd v Marshall CA

[1954] 1 WLR 1489

established a widely-applied test that to justify the reception of fresh evidence or a new trial, it had to be shown that the evidence could not have been obtained with reasonable diligence at the original trial; it would probably have had an important influence on the result, though it need not be decisive and must be apparently credible though not incontrovertible.

[54]In Ministry of Justice v Burton, the principle is again approved, that “it will only be in the interests of justice to allow fresh evidence to be introduced on review if the well-known principles in Ladd v Marshall have been satisfied. The first of these is that the evidence could not have been obtained for the original hearing.”

[55]There are exceptions as to when evidence might be adduced albeit that the strict requirements of Ladd v Marshall might not be met. In General Council of Shipping v Deria EAT [1984] 19 WLUK 80, it was held that such circumstance or mitigating factors had to be related to the failure to bring the matter within the paragraph (of the previous rules relating to the availability of new evidence) – ie that the evidence had become available since the conclusion of the hearing provided that its existence could not have been reasonably known of or foreseen at the time of the hearing. It is not enough that the so-called new evidence would probably have won the day for the claimant or that an issue of widespread public importance was involved.

[56]The Outasight case is authority that the same approach applies to the interests of justice test for reconsideration.

[57]In Outasight, a further consideration that might be applicable to an exercise of discretion in the interests of justice could arise from the right to a fair hearing laid down by

Article 6(1) of the European Convention

of Human Rights, as incorporated into UK law by the Human Rights Act 1998. There might be circumstances where that might amount to an additional circumstance such as to mean that the interests of justice would require new evidence to be adduced in circumstances that might not otherwise strictly meet the requirements of Ladd v Marshall. The examples given there are perhaps where a party has been ambushed at the hearing, or an issue has arisen over disclosure. At paragraph 50, in a fuller discussion, Her Honour Judge Eady says, “As to what circumstances might lead an Employment Tribunal to allow an application to admit fresh evidence, that will inevitably be case-specific. It is of course, always dangerous to try to lay down any general principles when dealing with specific facts, particularly where – as here – one party is not represented and where the point was not fully argued below. That said, it might be in the interests of justice to allow fresh evidence to be adduced where there is some additional factor or mitigating circumstance which meant that the evidence in question could not be obtained with reasonable diligence at an earlier stage (Deria). This might arise where there are issues as to whether there was a fair hearing below; perhaps where a party was genuinely ambushed by what too place or, as in Marsden, where circumstances meant that an adjournment was not allowed to a party when otherwise it would have been.”

[58]Addressed in evaluating the merits of that case were the question of whether the claimant had been denied a fair hearing.

[59]Events occurring subsequent to a hearing may justify a reconsideration in the interests of justice, where those events undermine or falsify the basis of the Tribunal’s reasoning.

[60]In Atef Hossaini v EDS Recruitment Ltd (t/a J and C Recruitment) and anor

2020 ICR 491

, the late submission of evidence showing that the translation of “babaji” was capable of being offensive on the basis of race or religion. That had been omitted in the document before the Tribunal. That evidence was held to be admissible; the claimant cannot be expected to investigate every document relied on.

[61]Usually, evidence must be produced before the end of the case, and it will not be permitted as a ground for review if it is later relied on but could have been presented in time.

[62]In every case, the applicant needs to explain why the evidence was not produced beforehand and why it is now in the interests of justice to consider that evidence.

[63]In addition to being a sufficient ground, the evidence must meet a threshold sufficient to show that the new evidence would have influenced the decision. Without Prejudice Privilege

[64]The general rule of the law of evidence is that all evidence relevant to an issue in proceedings is admissible and may be ordered to be disclosed.

[65]The “without prejudice” privilege is itself part of the law of evidence and is an exception to that general rule. It prevents either party to negotiations genuinely aimed at resolving a dispute between them from giving evidence of those negotiations.

[66]For the principle to apply there must be a dispute between the parties, though it is not necessary that litigation should have begun. The question is whether there is an attempt to compromise actual or impending litigation. That means that the parties must be conscious of at least the potential for litigation, even if neither side intends it as an outcome. The rule must therefore relate to correspondence that seeks to settle the particular dispute that has been raised.

[67]The rule applies to exclude from evidence all negotiations genuinely aimed at settlement, whether oral or in writing. The underlying public policy is that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiation may be used to their prejudice (Rush & Tomkins Ltd v Greater London Council and Another

[1989] 1AC 1280

[68]Conduct inconsistent with the maintenance of the confidentiality which the privilege is intended to protect may give rise to implied waiver. However, waiver requires the agreement of both parties.

[69]The privilege may be lost by a party who has abuse it by “unambiguous impropriety”, that is where exclusion of the evidence would otherwise act as a cloack for perjury, blackmail or similar impropriety (Unilever plc v Procter and Gamble Co

2000 1 WLR 2436

[70]Unambiguous impropriety means “something far more than being disadvantaged by the exclusion of evidence” (Portnykh v Nomura International plc

[2014] IRLR 251

EAT). It requires something amounting to fraud, blackmail or perjury Brodie v Ward t/a First Steps Nursery EAT [2007] WL4947475. Knox J in Independent Research SERvices v Catterall

[1933] ICR1

referred a threat to persist with dishonest proceedings or “other more extreme examples are given of threats in the nature of blackmail and other wholly undesirable and indeed criminal activities which cannot be indulged in cloaked under the privilege of without prejudice”.

[71]In Pedropillai v PricewaterhouseCoopers LLP ET case no 230068/10, a tribunal found it was an unambiguous act of victimisation for the claimant to be told in a meeting that he would not be able to continue as a partner in the company if he continued with his race discrimination proceedings. They concluded he was threatened with expulsion of he pursued his claim. This was an act of victimisation that triggered the “unambiguous impropriety” exception. In contrast, pointing out that there may be a problem with HMRC and the use of dividend is not victimisation.

[72]Mr Henman refers us to to Ferster v Ferster, Ferster and Interactive Technology Co Ltd CA

[2016] EWCA Civ 717

where the impropriety arose from the nature of the threats themselves. A without prejudice offer with regard to the sale of shares on the basis that the vendors knew of alleged wrongdoing that could lead to the company taking committal proceedings against the other party had amounted to blackmail, and that was unambiguous impropriety.

[73]Mr Henman provided other cases which need not be more fully referred to here, including Tchenguiz and Rawlinson and Hunter Trustees S A v Thornton UK LLP and others High Court

[2017] EWHC 310

; Grosvenor Chemicals Ltd, Whyte Chemicals Ltd and Melvyn Whyte v UPL Europe Ltd and others [2017]; ECU Group plc v HSBC High Court [2018_ EWHC 3045. Aggravated Damages

[74]Aggravated damages may be awarded in particularly serious cases of discrimination. They are compensatory only and should not be awarded to punish the respondent.

[75]They are seen as part of injury to feelings and Tribunals should avoid compensating claimants under both heads for the same loss.

[76]In HM Prison Service v Salmon

2001 IRLR 425

EAT it is said that, “Aggravated damages are awarded only on the basis and to the extent that the aggravating features have increased the impact of the discriminatory act or conduct on the applicant and thus the injury to his or her feelings”.

[77]In general, they are only appropriate in cases where the respondent has behaved in a high-handed, malicious, insulting or oppressive manner in committing the discriminatory act (Alexander v Home Office 1988 CA ICR 685).

[78]In Zaiwalla and Co and anor v Walia

2002 IRLR 697

EAT, it was said that damages are available for the manner of conducting the tribunal proceedings. In that case it was the inappropriate and monumental effort put into the defence of the proceedings in a manner deliberately designed to be intimidatory and cause the maximum unease and distress to the claimant.

[79]There must be some causal link between the conduct and the damage suffered: high-handed conduct on its own is not enough to lead to an award of aggravated damages. The ultimate question according to the then President of the EAT, Mr Justice Underhill, in Commissioner of Police of the Metropolis v Shaw

[2012] ICR 464

(b) bad motive, provided that the claimant was aware of it, for example conduct based on, prejudice, animosity spite or vindictiveness is likely to cause more distress

[80]Tribunals must be wary of focusing on the quality of the respondent’s conduct – that is, assuming that the more heinous the conduct, the more devastating its impact on the claimant. Tribunals must not lose sight of the ultimate purpose of aggravated damages, which is to compensate for the additional distress caused to the claimant by the aggravating features in question.

[81]The award overall in respect of non-pecuniary loss must be fair and proportionate (Shaw, above)

[82]The initial application was amended on 17 September 2021. No objection was raised to the Tribunal considering the amended application in place of the initial application.

[83]The case had been listed for consideration of whether there were grounds for reconsideration and if so whether the judgment should be confirmed, varied or revoked. There had been no agreed identification of issues.

[84]The application was for reconsideration on the basis of the without prejudice correspondence now referred to and in respect of failures to disclose.

[85]The following key issues arose from consideration of the application: 85.1. Whether further evidence now available had been withheld by the Respondent and would have affected the outcome. 85.2. Whether the correspondence relied on, between Mills and Reeve LLP and IHR solicitors arising in the course of settlement negotiations between the parties to the defamation case was properly to be regarded as privileged in this context, being headed “without prejudice”. 85.3. Whether it was admissible as evidence in this case. 85.4. This was not new evidence, although it had not been brought to the attention of the Tribunal; it pre-dated the final hearings and had throughout been in the possession of the Claimant’s representative. Did the failure to draw the Tribunal’s attention to the evidence of the misconduct complained of during the proceedings and prior to the Remedy judgment being given, mean that it should not be considered? 85.5. If there were grounds to reconsider the remedy judgment, should it be varied and if so in what terms, or revoked?

[86]Those issues were outlined at the start of the hearing and agreed. Fresh evidence Issue: Whether further evidence now available had been withheld by the Respondent and would have affected the outcome.

[87]The evidence now relied on was material relating to a different nurse’s disciplinary hearing in respect of an incident in August 2018. The respondent had been very slow to disclose the statutory nursing notes to Mrs Moorcroft in respect of that incident, in which Mrs Moorcroft had herself been disciplined. The relevance to the Tribunal was the handling of the matter once Mrs Moorcroft saw those notes and knew that the disciplinary action taken had been based on a simple misconception.

[88]The Respondent did not disclose to the Claimant or the Tribunal the record of investigation and disciplinary action against another nurse on duty at the time of the incident for which Mrs Moorcroft was wrongly disciplined. The reason given was that the documents were not available, having been searched for, or were irrelevant.

[89]That evidence had come into the Claimant’s and Mr Henman’s hands in August 2021, from the other nurse herself. They had been presented by the Respondent in January 2020 to the NMC.

[90]The Tribunal had seen the statutory nursing notes and had made findings on the basis of those notes, including that the disciplinary action taken against Mrs Moorcroft had inexplicably not been based on the statutory nursing notes and that the statutory nursing notes showed that Mrs Moorcroft had not made the errors for which she was disciplined.

[91]The Tribunal had not been directly concerned with the disciplinary proceedings after the August 2018 incident, but with Mrs Moorcroft’s later grievance, lodged on 16 May 2019, by which time she had gained access to the statutory nursing notes and was in a position to demonstrate that the findings against her were misconceived.

[92]The Tribunal had also been in a position to make findings that the other nurse had admitted medication errors and that Mrs Moorcroft had not made such errors.

[93]The evidence now presented showed that the documents were available for disclosure by the Respondent and were relevant and disclosable. They should have been disclosed.

[94]The evidence did not show that the Tribunal would have reached a different conclusion or would have made a different award, if the documents had been properly disclosed. These documents did not support a reconsideration of the award.

[95]There had already been a preparation time order made in respect of the Respondent’s known failures to disclose. The Without Prejudice Correspondence Issues: Whether the correspondence relied on, between Mills and Reeve LLP and IHR solicitors arising in the course of settlement negotiations between the parties to the defamation case was properly to be regarded as privileged in this context, being headed “without prejudice”. Whether it was admissible as evidence in this case.

[96]Very shortly before the final hearing of this case, Mr Henman was put under heavy pressure to withdraw from representing Mrs Moorcroft.

[97]That was not done in correspondence to him. It was done in correspondence to his wife’s solicitors.

[98]It was done in correspondence endorsed as “without prejudice”.

[99]This is what Mr Henman said, to explain his course of action: “My understanding as that because it was dealing with without prejudice documents, I could not present that to a third party, until there was clarification that blackmail was an exception to the without prejudice communication.”

[100]He was asked, Why did you not decide to bring it to the tribunal so we could decide what to do?

[101]His reply was, It is a complex area of law. Risking contaminating the hearing when you don’t know the outcome. I have already faced a trial where use of WP communications had adverse consequences. I was concerned about losing Ms Moorcroft’s trial, already delayed, the risk of the hearing being vacated, a concern for her.”

[102]His understanding was that that correspondence could not, in the normal course of things be disclosed or referred to. He had conducted what research he could – he is not a lawyer and has no access to a specialist library. His understanding was that to be able to disclose the correspondence or the pressure he was under required that he establish an exception to the protection given against disclosure of privileged documents. Even to embark on that jeopardised the hearing.

[103]That was a reasonable understanding for a lay person.

[104]He was faced with a very difficult dilemma. He risked prejudice to his wife if he continued with his representation, and of course potentially to himself. He incurred prejudice to Mrs Moorhouse if he withdrew from representing her at short notice.

[105]Courageously, he did not withdraw.

[106]He reported the matter to the tribunal. He did not copy it to the respondent’s representatives in these proceedings, fearing retribution. He feared that even to explain the pressure he was under and the reasons behind it would prejudice his wife’s or Mrs Moorcroft’s position.

[107]That application, the email of 19 March, with associated documents, was put on the file. It was not referred to a judge. Whether that was due to staffing difficulties due to Covid-19, or because it was not copied to the respondent or for some other reason, no action was taken.

[108]Mr Henman did not pursue it further.

[109]He did not bring it to the attention of the tribunal at the first hearing.

[110]He did not bring it to the attention of the tribunal dealing with remedy.

[111]It was because the correspondence was marked without prejudice that he understood that there were obstacles in bringing it to the attention of the tribunal.

[112]There was no dispute between him and the respondents in the case being negotiated: he was not a party to those proceedings, the correspondence was not with him.

[113]It has been eventually been conceded – contrary to Mr Cater’s initial contention - that there was no basis for without prejudice correspondence between the Respondent and Mr Henman – he was not party to any dispute with them to which privilege could attach.

[114]It has also eventually been conceded that the correspondence was not without prejudice with regard to him and we so find.

[115]Even were the correspondence privileged, Mrs Parris was required to disclose it to him. The undertakings in respect of him could not be given without his knowledge and consent. Both parties must have consented to that disclosure. The respondents must thereby waived any privilege in respect of the conditions to be imposed on him.

[116]In our judgment, the correspondence was not privileged in his hands.

[117]As a lay person, understandably, he could not reach that view. He was confused about the true position. That made it much more difficult for him to bring it to the Tribunal’s attention.

[118]His only experience in relation to without prejudice correspondence led him to believe that if he alerted the Tribunal to the pressure he was under, there was a real risk to the hearing being delayed, at the very least.

[119]For a non-lawyer, that was not an unreasonable confusion or belief.

[120]We cannot see a basis on which the respondents could properly and genuinely believe the correspondence about the conditions he was asked to submit to to be privileged. Unlike Mrs Moorcroft, they had the benefit of legal advice.

[121]We have to consider this from Mrs Moorcroft’s point of view.

[122]She is not well placed to bring a claim on her own account. We are satisfied that she has been very dependent on the assistance of Mr Henman as her representative.

[123]Anyone would have been in difficulty, to have their representative withdraw shortly before the full hearing of a complex case.

[124]For those who can pay for representation, arrangements can be made for a case to be transferred to a different representative, the disruption and disadvantage limited by the availability of experienced professional advocates.

[125]There is no pool of lay representatives who can pick up a case at short notice. It is virtually certain that Mrs Moorcroft would have had to handle the case on her own without representation, or withdraw the claim. She has no experience of Tribunals, very limited understanding of the proceedings, limited access to the technology and had at no stage prepared on the basis that she would be representing herself. She says she was not equipped to do so and we accept that, having seen her during five days of hearings.

[126]It is equally clear that that was the intended outcome. She was not an accidental casualty in a strategy targeted at Mr Henman. Her case, and his specific withdrawal from it, was one of the intended goals.

[127]The condition was softened a little, to allow him to participate in the forthcoming liability hearing. His further involvement in any later hearing, which would include any costs hearing, reconsideration or appeal, was to be barred. He understood that even his participation on any remedy hearing would be precluded.

[128]There is an absolute statutory right to choose your own representative in the Employment Tribunal section 6(1) of the Employment Tribunals Act

[129]This was a deliberate and wrongful interference with that right. Mr Henman was being bullied to withdraw and Mrs Moorcroft was being intimidated.

[130]On any measure, this is egregious behaviour, deliberately intimidating, likely to derail her preparation for the final hearing or to provoke her withdrawal of the claim.

[131]In our judgment, it was also an attempt to interfere with Mrs Moorcroft’s right to a fair hearing.

[132]She secured a substantial success at the tribunal, with a high award; but the merits of the case are not the issue. There was an attempt to interfere with her right to the representative of her choice, at a point when Mr Henman’s withdrawal might have forced her to give up the case, at the very least significantly undermining her ability to prepare and present the case. That is unfair; an attempt to secure an unfair advantage.

[133]What she may not have been aware of is that a late withdrawal could itself have been met by an application for costs against her – with potentially the same difficulty in that she did not have access to the correspondence requiring Mr Henman’s withdrawal and the same difficulty in drawing correspondence marked without prejudice to the Tribunal’s attention.

[134]Mr Henman did not draw the situation to the Tribunal’s attention, after his unsuccessful attempt to raise it on an ex parte basis. He gives no reason for that that is unrelated to her case. He acted with her best interests at heart.

[135]By contrast, the respondent’s attempted to conceal their misconduct, the inappropriate pressure put on Mr Henman to withdraw, under the veil of privilege, making it difficult for him to draw it to the attention of the tribunal. It was that which raised the possibility in his mind that if he even attempted to raise it the hearing, the hearing could not proceed as listed.

[136]Applying the law to the facts, we accept the explanation for not bringing forward this evidence at the final hearings on liability and remedy. The evidence was available, but in circumstances in which Mr Henman genuinely believed that to refer to it would potentially prejudice Mrs Moorcroft, at the least risking a delay in the hearing, perhaps a fresh panel – if, for example, he referred to it, but was told that the correspondence and could not be considered. The inappropriate use of without prejudice correspondence created that misunderstanding.

[137]We conclude that in this case, exceptionally, it is fair and just to allow this evidence to be adduced at this stage as the basis for reconsideration. This was an unfair attempt to interfere with Mrs Moorcroft’s right to representation of her choice and to derail the preparation of her case, perhaps to force withdrawal. It was an interference with her right to a fair hearing. The attempt wrongfully to assert privilege is itself a reason why the attempt could not, as Mr Henman saw it, be brought to the attention of the Tribunal. This was, in our judgment, unambiguous impropriety, an attempt to force Mr Henman off the case.

[138]In addition to being a sufficient ground, the evidence must meet a threshold sufficient to show that the new evidence would have influenced the decision.

[139]The application relates to the award for aggravated damages, as an aspect of injury to feelings. The Tribunal had been asked to award aggravated damages, but the evidence before them had not merited such an award. Had this evidence been before the Tribunal, it would have influenced the decision. Faced with evidence that the respondent’s conduct was inappropriate and intimidatory, the case for an award of aggravated damages would have been made out.

[140]It is necessary in the interests of justice and having regard to the overriding objective to reconsider the judgment. Reconsideration

[141]The original award for injury to feelings was £17750

[142]The conduct of the Respondent justifies a further award of aggravated damages of £4000.

[143]Mr Henman continued to be under pressure to withdraw, the correspondence going on until September 2021. However, Mrs Moorcroft herself was relieved at his decision that he would continue with the case, and had that reassurance before the liability hearing in April.

[144]While the period through which she was fearful of his withdrawal was short, she risked severe consequences: possibly the abandonment of the case concerning events from 2018, on a claim brought in November 2019, and in any event, as she saw it, her prospects of a fair hearing in which she was able properly to present her case and challenge that of the Respondent. She was threatened with not being able to cope with the case at all. She describes graphically the frequent panic attacks, sense of doom, the loss of sleep, and the effect on her eating. She suffered of course the anxiety that is normal prior to a long-awaited, contested hearing, but at this point, her anxiety and distress were acute. She was focused on whether she would have Mr Henman’s help and what to do if she did not, rather than on preparation for the hearing.

[145]We remind ourselves that the purpose of the award is not punitive but compensatory. This is however intimidatory and unfair behaviour and experienced as that.

[146]It is that the period of her distress was relatively short, and that Mr Henman did not in fact withdraw, albeit faced with such pressure, that the award is no higher.

[147]It is the injury to feelings element in the award that falls to be reconsidered. We add aggravated damages of £4000 to the previous award of £17,750 for injury to feelings.

[148]We apply, without change, a 10% for ACAS uplift which makes the aggravated damages £4,400. While the Respondent’s failure to follow fair procedures clearly merits an uplift, the same considerations apply as earlier: this is already a high award and a higher uplift is not just and equitable.

[149]There are no grounds to reconsider the loss of earnings element in the previous award, which remains at £38,988.

[150]Additional interest on the award is £741, from the date of the original discrimination. That is 768 days at 8%, the statutory rate.

[151]The previous award was Injury to feelings 17,750 Loss of earnings 38,988 Interest on discrimination 5,570 Unfair dismissal 5,210 Total 73,192

[152]Adding the additional award of £4,400, additional interest, £741, the new total before grossing up is £78,333. Grossing up

[153]The total taxable award is that total figure £78,333 less £30,000, the exemption from tax for termination payments, less the claimant’s personal allowance of £12500, and that gives a total taxable figure of £35,833 this year.

[154]To find the sum that will leave £35,833 in the claimant’s hands after tax, the following calculation produces the necessary taxable figure: 35,833/80x100 = 44,791.

[155]That is the figure that when taxed will leave a figure of £35,833. That means £8,958 (44,791 – 35,833) is the sum that must be added to the award to cover the tax due this year on the sum of £35,833, that the Claimant would not otherwise have paid.

[156]Adding the additional sum required to provide for tax on the award in the claimant’s hands, the new total after grossing up becomes £87,291.

[157]The additional sum payable by the respondent as a result of this award is £6426. Costs

[158]There was an application for preparation time costs in respect of the reconsideration application including the time spent on the disclosure issues. It is not routine for there to be a costs award in the Employment Tribunal. There had been no conduct by the respondent in connection with this application relative to this application that fell within the criteria in the terms of Rule 76. A preparation time order had been made in the earlier remedy hearing based on the respondent’s failures to disclose. Some additional material had been obtained in this case from the other nurse disciplined in 2018, material that was disclosable and should have been disclosed by the respondent. Having failed to disclose it, the respondent had provided it to the NMC. However, it did not advance the case for reconsideration. The Tribunal found no basis on which to make a further preparation time order.