Ms M F Gherghel v Thurrock Borough Council: 2305972/2023

EMPLOYMENT TRIBUNALS

Case No 2305972/2023

Between

Ms M F GherghelClaimant

Thurrock Borough CouncilRespondent

Before

Employment Judge Hart

Representing herself for claimant

Mr Farooq (instructed by solicitor) for respondent

Date 14 October 2025

JUDGMENT

[1]The complaints of unlawful deduction of wages and breach of contract in relation to arrears of pay during and up to the termination of employment were not presented within the applicable time limit. It was reasonably practicable to do so. The complaints are therefore dismissed.

[2]For the avoidance of doubt the claimant’s complaints for discrimination, harassment and victimisation have not been dismissed at this time.

REASONS

[1]The claimant was employed by the respondent, a local authority, as a Senior Practitioner in the Children’s Services Directorate, from 17 September 2007 until 9 September 2022 when she was retired on grounds of ill-health.

[2]Early conciliation started on 21 August 2023 and ended on 2 October 2023. The claim form was presented on 27 October 2023.

[3]The claimant brings the following claims:3.1 arrears of pay during and up to the termination of employment,

3.2 pension benefits post employment,

3.3 discrimination, harassment and / or victimisation in relation to disability, age, sex, race and marital status.

[4]The claim for pension benefits was struck out by EJ Corrigan on 16 March 2024. The discrimination claims are continuing and are not affected by this judgment. Background to this hearing

[5]On 25 April 2024 EJ Corrigan ordered that the Claimant provide within 28 days:5.1 ‘a list of the arrears of pay during her employment and at termination stating for each date that she was underpaid, the amount which she should have been paid and the amount that was paid. She should also state the total claimed’.

5.2 ‘Whether or not she accepts that the claim has been submitted more than three months (plus the ACAS conciliation extension) after the last underpayment and is therefore out of time unless the tribunal extends time? If this is not accepted she should explain why not.’

[6]At the same time, a public preliminary hearing of three hours was listed to determine: ‘Whether the claim for arrears of pay is out of time and therefore outside the jurisdiction of the tribunal unless it was not reasonably practicable to submit the claim in time, and the tribunal considers it has been submitted within a further period as is reasonable’

[7]On 22 May 2024 the claimant had provided a 30 page document (‘further particulars’), of which the first 11 pages related to her arrears of pay claims.

The hearing

[8]No documents were provided for this hearing by either party.

[9]The first part of the hearing was spent clarifying with the claimant what her ‘arrears of pay’ claims were, with reference to the further particulars set out in the 22 May 2024 document.

[10]The claimant was asked why she had not commenced tribunal proceedings within 3 months of the date of the last deduction. Both parties provided brief oral submissions on jurisdiction (time limits). I gave oral judgment dismissing the claims for unlawful deduction of wages and breach of contract. Due to an oversight the holiday pay claims under the Working Time Regulations 1998 were not formally dismissed. The parties have been informed that this is to be addressed at the next preliminary hearing.

[11]The judgment and case management order were sent to the parties on 18 October 2024. The claimant requested written reasons by email dated 16 October 2024. The arrears of pay claims

[12]The claimant confirmed that her claims were as follows:12.1 Underpayment of annual salary of £2643.13 from April 2022 to September 2022.

12.2 Non-payment of 1 month’s sick pay of £4625 between April and May 2022.

12.3 Underpayment of sick pay of £289 between May to Sept 2022.

12.4 Non-payment of pay of £571 between 9 September and 20 October 2022, having been signed off sick up to 20 October 2022.

12.5 Underpayment of PILON of £492.73 in October 2022.

12.6 Underpayment of full sick pay of £7268 up to 20 October 2022.

12.7 Non-payment of 1 month’s pay of £2643 between 19 October 2022 and 16 November 2022.

12.8 Arrears in annual leave of 44 days of £5847 which should have been paid at the latest in September 2022, on termination of her contract.

12.9 Underpayment of PILON, having been paid only 6 weeks instead of 12 weeks and net instead of gross, of £6442 on October 2022.

[13]The claimant accepted that her contract was terminated on 9 September 2022, and that she received her notice pay (PILON) in October 2022. Her interactions with the respondent thereafter related to her attempts to recover the above alleged underpayments and non-payments, and alleged errors in her pension benefits.

[14]After October 2022, the Respondent made the following payments:14.1 In or around April 2023 a payment of £1250 which was owing to the Claimant following the 2022/23 pay award.

14.2 On 18 October 2023 a payment of £4,518.39 reimbursement of tax and NI that had been deducted on the PILON payment. LEGAL PROVISIONS Time limits should be strictly applied.

[16]Section 23(2) of the Employment Rights Act 1996 (ERA 1996) provides that an employment tribunal shall not consider a complaint of unlawful deduction of wages unless it is presented before the end of the period of three months beginning with ‘the date of payment of the wages from which the deduction was made’. Where there is a ‘series’ of deductions time runs from the last date in the ‘series’.

[17]Article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (Order 1994) provides that where a breach of contract claim is outstanding on termination of employment the claim must be brought ‘within the period of three months beginning with the effective date of termination of the contract giving rise to the claim’.

[18]Both these provisions are subject to an extension to facilitate ACAS early conciliation before instituting proceeding. However this still means that ACAS early conciliation must be entered into within the primary 3 month time limit.

[19]The tribunal has a discretion to extend time limits in favour of the employee (ERA 1996 section 23(4) and Order 1994 article 7(c)), where:19.1 the employment tribunal is satisfied that it was ‘not reasonably practicable’ for a claim to be presented before the end of the relevant period of three months, and

19.2 the claim is presented within such further period as the tribunal considers reasonable.

[20]In relation to the ‘not reasonably practicable’ test, three general principles apply:20.1 It should be given a liberal construction in favour of the employee.

20.2 It is a question of fact for tribunals to decide.

20.3 The burden of proof rests with the claimant. 21. ‘Reasonably practicable’ does not mean reasonable, which would be too favourable to employees, and does not mean physically possible, which would be too favourable to employers, but means something like ‘reasonably feasible’: Palmer and Anor v Southend-on-Sea Borough Council

[1984] ICR 372

(CA).

[22]Whether the claim was presented ‘within such further period as the tribunal considers reasonable’ is a less stringent test than that for ‘not reasonably practicable’. It is only necessary to consider this issue if the tribunal finds that it was not reasonably practicable to submit the claim in time.

[23]Trying to resolves the dispute internally is not in itself sufficient to justify a find that it was ‘not reasonably practicable’ to present a claim in time: Palmer and Anor v Southend-on-Sea Borough Council

[1984] ICR 372

(CA).

[24]A debilitating illness may prevent a claimant from submitting a claim in time: Schultz v Esso Petroleum Co Ltd

[1999] ICR 1202

(CA). Whilst medical evidence is not conclusive it is desirable and should not just support the claimant’s illness but also that the illness prevented the claimant from submitting the claim in time. CONCLUSIONS Whether the unlawful deduction of wages claims were out of time:

[25]Even taking the claimant’s case at its highest, and assuming that her claims listed at paragraph 12 above were all part of a connected ‘series’ of deductions, the last deduction / non-payment was 16 November 2022 (and therefore the period within which to commence ACAS early conciliation expired on 15 February 2023). Her interactions with the respondent after the termination of her contract on 9 September 2022 related to her attempts to recover the above underpayments and non-payments, for which she was partially successful. The claimant commenced ACAS early conciliation on 21 August 2022. Therefore her claims of unlawful deduction of wages in relation to arrears of pay during and up to the termination of employment were not presented within the 3 month time limit.

[26]In her further particulars the claimant submitted that her claim was in time because the last ‘underpayment’ was made on 6 October 2023 and / or it was part of a series of continuing events, with reference to the following events:26.1 On 12 September 2023, the receipt of correspondence from the respondent acknowledging her final salary value as per the 2022-23 pay policy.

26.2 On 13 September 2023 the claimant objecting to the errors in the calculation of her pensionable pay on the EPF68 form.

26.3 On 15 September 2023 the claimant alleges that she was harassed because she was asked to agree the EPF68 form.

26.4 On 6 October 2023 the claimant was reimbursed NI and Tax on her PILON payment.

[27]The events of 12, 13 and 15 September 2023 are not relevant considerations. There was no deduction from her wages on these dates. The mere fact that there was an interaction with the respondent does not make it part of a ‘series’ of deductions. Further and in any event these interactions related to her pension benefits claim which has been struck out and / or her harassment claim which is a different cause of action. The payment on 6 October 2023, was also not a deduction of wages, but rather a reimbursement of a deduction made in October 2022. Therefore none of these matters from part of a series of deductions, to enable time limits to start to run in September / October 2023 as opposed to (at the latest) 16 November 2022. Whether the breach of contract claims were out of time:

[28]The claimant’s contract was terminated on 9 September 2024 when she took ill health retirement. This was the effective date of termination and therefore the three month time limit expired on 8 December 2024. Therefore the claims for breach of contract were not presented within the 3 month time limit. Whether it was reasonable practicable to submit the claim in time:

[29]The claimant admitted that she was aware of the 3 month time limit for submitting a claim. She gave two reasons for not presenting her claims in time: ill health and trying to resolve the matters internally with her ex-employer.

[30]In relation to her ill health the claimant claims she has long-COVID and 17 collateral physical conditions. She did not provide any medical evidence in support, however I questioned her carefully about her health over the material period of time. I have no doubt that she was severely ill, since her contract had been terminated on the grounds of ill health. She informed me that she was bedbound and homebound ‘on and off’ during the winter time. However she admitted she was able to write emails and make written representations to her employers throughout this period, albeit it would take her longer to write an email. She provided no clear evidence that it was not reasonably feasible for her to contact ACAS to commence early conciliation within the 3 month time limit or to submit a claim.

[31]I considered that the real reason for her not submitting her claim in time was because she was trying to resolve the matters with the employer directly. This was a laudable position for her to take: she was trying to do the right thing by resolving the matter with her employer and now finds herself in a situation where her claim is out of time. However it is a well established principle that pursuing internal proceedings is not of itself a sufficient ‘not reasonably practicable’ reason for extending time limits in an employee’s favour. The claimant was aware of the time limits. Although she is a litigant in person, she was a senior social worker and therefore in a position to seek advice and understand the importance of complying with tribunal time limits.

[32]I therefore considered that it was reasonably practicable for the claim to have submitted within the 3 month limitation period. Her claims for unlawful deduction of wages and / or breach of contract in relation to arrears of pay during and up to the termination of employment are therefore dismissed.

[1]The unanimous judgment of the Tribunal announced orally at the hearing on 10th October 2025 was as follows:1.1 The complaint of direct disability discrimination is not well-founded and fails.

1.2 The complaint of harassment related to disability is not well-founded and fails.

1.3 The complaint of discrimination arising from disability is not well-founded and fails.

1.4 The complaint of direct sex discrimination is not well-founded and fails.

1.5 The complaint of harassment related to sex is not well-founded and fails.

1.6 The complaint of direct age discrimination is not well-founded and fails.

1.7 The complaint of harassment related to age is not well-founded and fails.

[2]At the end of the hearing on 10th October 2025, the claimant requested written reasons under Rule 62 of the Employment Tribunals Rules of Procedure 2024.

[3]The Tribunal’s reasons are set out below, which, except for some editing and refining, reproduce the decision and reasons that were announced orally at the hearing on 10th October 2025.

[4]Unless otherwise stated, page references relate to the main hearing bundle comprising 634 pages (see paragraph 18.1 below). Introduction

[5]The matter relates to the claimant’s employment by the respondent from 17th September 2007 as a senior practitioner, until her retirement on the grounds of ill-health on 9th September 2022.

[6]Early conciliation started on 21st August 2023 and ended on 2nd October 2023. The claim was presented to the Tribunal on 27th October 2023.

[7]The respondent submitted grounds of resistance with its ET3 response form, which are dated 9th August 2023.

[8]There is a detailed procedural history to this claim, which in the interests of proportionality, is only summarised here.

[9]The case management order dated 16th October 2024 records the claim comprises the following complaints:9.1 Direct disability discrimination and / or harassment, discrimination arising out of disability;

9.2 Direct age discrimination and / or harassment;

9.3 Direct sex discrimination and / or harassment;

9.4 Direct marital status discrimination and / or harassment;

9.5 Direct race discrimination and / or harassment;

9.6 Victimisation;

9.7 Unlawful deduction of wages;

9.8 Breach of contract;

9.9 Wages claims;

9.10 Breach of the Working Time Regulations 1998; and

9.11 Equal Pay Act claim.

[10]On 17th February 2024 Employment Judge Corrigan directed any claims against the Pension Fund to be struck out unless the Claimant provides written reasons why they should not be struck out. The Claimant provided written reasons on 2nd March 2024.

[11]On 25th April 2025, Employment Judge Corrigan directed claims in respect of the pension fund be dismissed further to the order dated 17th February 2024.

[12]There was a public preliminary hearing for case management on 15th October 2024 when the complaints of unlawful deduction of wages and breach of contract were struck out due to being presented to the Tribunal out of time.

[13]A second preliminary hearing was listed on 15th February 2025.

[14]Paragraph 67 of the case management order dated 13th February 2025 records the following: During the discussion on the claims and issues the legal tests for each complaint was explained and the claimant confirmed that she was not pursuing her claims for race discrimination, marital status discrimination, equal pay and victimisation. These claims have been dismissed upon withdrawal and are subject to a separate Judgment.

[15]This was raised with the Claimant in the morning of 8th October 2025, in particular that the case management order recorded that the Equal Pay claim was withdrawn, and she was asked whether she had any comment, the Claimant stated she did not. The Final Hearing

[16]This final hearing was listed on 6th October to 10th October 2025. At the hearing the Claimant was not legally represented, the Respondent was represented by Ms Patterson of counsel.

[17]During the early stage of the final hearing the Tribunal explored with the Claimant what reasonable adjustments would be required for her to manage the hearing. She initially confirmed there were none. We explained the Tribunal’s normal working day and lunch time and asked whether she would require additional breaks, she indicated that she has learnt to bear the symptoms of her condition and will simply persevere during the hearing. We reassured her that she should not suffer in silence, and we would be guided by her as to whether she needed a break, and she should feel free to request this. This point was made a number of times during the course of the hearing.

[18]The following documents were submitted to the Tribunal for the final hearing:18.1 634-page hearing bundle (641 pdf pages);

18.2 A chronology (6 pages);

18.3 A draft cast list (2 pages);

18.4 A draft essential reading list (1 page);

18.5 The Claimant’s 8 September 2025 Compensation and Remedy Seeking - Schedule of Loss (30 pages);

18.6 The Claimant’s 8 September 2025 Schedule of Loss (10 pages); and

18.7 An EPF68 form dated 14th September 2023.

[19]In addition to the above documentation, the parties relied on written evidence contained in their witness statements. The claimant relied on a witness statement dated 10th September 2025. She stated she also wished to rely on the 8th September 2025 documents (see paragraphs 18.5 to 18.6 above). Due to the description of the documents, we queried whether they were relevant to the amount of compensation only, rather than issues about whether or not deductions and miscalculations had been made. The Claimant stated it was the former.

[20]The respondent’s witness statements comprised the following:20.1 Witness statement of Danielle Mansfield, Senior Practitioner dated 30th September 2025 (4 pages). She was the Respondent’s Interim Team Manager from October 2021 to December 2022;

20.2 Witness statement of Laura Witts, Payroll Services Manager dated 26th August 2025 (3 pages);

20.3 Witness statement of Andrew Brown, Head of Payroll, Pensions, Data and Transactional Services dated 29th August 2025 (5 pages); and

20.4 Witness statement of Julie Harris, HR Business Partner, dated 6th August 2025 (6 pages).

[21]Except for the 14th September 2023 EPF68 form which was provided on the morning of 9th October 2025, all documents referred to above were available at the start of the hearing.

[22]The Claimant was asked whether she had made any applications prior to the final hearing which were outstanding, she stated she had not. She was asked whether there were any matters the Tribunal need to deal with before dealing with the substantive claim, she stated the only issue she wanted to deal with was the Respondent’s legal representation. We heard submissions from both parties on this issue, and gave our decision and reasons for concluding it was for the respondent to select any legal representatives it wished to engage, which is dealt with later (see paragraphs 26 to 32 below).

[23]The Tribunal also considered the parties representations on whether the final hearing should be stayed pending the Claimant’s Employment Appeal Tribunal hearings in April and June 2026. Our decision and reasons for not imposing a stay are dealt with later (see paragraphs 24 to 25.5 below).

[24]As stated, we considered whether it would be appropriate to stay the claim pending the outcome of the Employment Appeal Tribunal hearings, we noted imposing a stay is the standard approach.

[25]However we also took into account the following matters which persuaded us that in this instance it was appropriate to depart from the standard course:25.1 The Claimant has been refused permission to appeal, and next year’s hearings are dealing with renewed applications.

25.2 Both parties wanted this final hearing to proceed.

25.3 If the claim is stayed pending the outcome of the appeals, which are at an early stage, the final hearing could be a considerable time in the future. It is also relevant that this claim was presented on 27th October 2023, meaning it is likely to be heard several years after it was first presented, resulting in potential prejudice from memory fade, and tracing witnesses who may no longer be employed by the respondent.

25.4 There would be cost implications of staying the claim: the Respondent is a local authority, and its legal fees would increase. This is in addition to the impact on the Tribunal’s resources, this hearing having already been allocated to be heard by a full tribunal who had already prepared for the hearing.

25.5 We therefore concluded it is in accordance with the overriding objective to proceed with the claim to avoid the costs and delay that imposing a stay would entail.

[26]We also considered the Claimant’s application regarding the Respondent’s representative, which at this stage of the hearing related only to Mr Farooq. The Claimant objected to him having conduct of the litigation on behalf of the Respondent, and consequently objected to the Amended Grounds of Resistance. Despite the Tribunal pressing the Claimant a few times for clarification as to what order she was seeking as a result of her objections, the position was not entirely clear. However, when the Tribunal set out its understanding of the Application, the Claimant confirmed we had correctly understood her position.

[27]The Claimant’s position is that she was employed by Thurrock Borough Council. She has never been employed by the London Borough of Barking and Dagenham (“LBBD”), she has never resided within its authority area, she has never had any direct contact with that authority, she has not authorised the Respondent to disclose her personal data to LBBD, and she is aware it does not have a shared services agreement with the Respondent, for instance, to provide legal services. She therefore considers there is no legitimate basis for Mohammed Farooq, who she believes is not employed by LBBD, to be representing the Respondent in these proceedings. She also claimed he was unfamiliar with the claim because, for instance he had referred to the termination of her employment as a dismissal. She objected to him disputing aspects of her disability which was supported by evidence from medical practitioners. Consequently, she disputed the legality of the Amended Grounds of Resistance (which it seems he settled).

[28]The Respondent’s response is that it may select whichever legal representative it chooses, as the Claimant has been informed by Employment Judge Hart when she previously raised this matter at an earlier hearing. The Amended Grounds of Resistance were prepared in accordance with paragraph 13 of Employment Judge Hart’s case management order made on 17th February 2025. Accordingly the Claimant’s request/application should be refused.

[29]We agree with Ms Patterson, and indeed Employment Judge Corrigan and Employment Judge Hart who had both previously informed the Claimant that the Respondent may select its own legal representative.

[30]We do not consider the Tribunal has jurisdiction to prohibit Mr Farooq from acting, and the Claimant did not refer us to any legal authority to support us having jurisdiction to do so. Even if there is no current shared services agreement between the Respondent and LBBD, the Respondent may appoint an inhouse solicitor if it wishes, or an external solicitor, even if there is no contractual agreement (or in this context, shared services agreement) between them. For completeness we add that Mr Farooq has a LBBD e-mail address, but as stated, whether he is or is not an LBBD employee will not affect the Respondent’s choice to instruct him or LBBD to represent it in these proceedings.

[31]That the claimant has not authorised the Respondent to share her personal data with LBBD is not persuasive. It is an inevitable aspect of litigation that a party will share relevant personal data regarding the opposing party with its legal representatives. That cannot be subject to the opposing party’s consent, otherwise it could allow the opposing party to influence who another party may instruct as legal representatives, if instructions are subject to another party providing consent which is withheld.

[32]Although we find the Claimant has not provided any sufficient basis to criticise Mr Farooq’s referring to her termination as dismissal, or submitting the Respondent disputes that some of the medical conditions relied on by the Claimant amount to a disability. Nonetheless, that is again a matter for the Respondent: it has appointed LBBD/Mr Farooq and we have no legitimate basis to interfere with that choice.

[33]After announcing our decision and reasons, we checked with the parties whether the decision required clarification, they both confirmed it did not.

[34]At the end of the second day the Claimant raised this issue again stating she did not understand the decision we made the day before, and so she could not understand why Ms Patterson was representing the Respondent. We reiterated the decision we made and summarised our reasons, adding that the Claimant’s application had disputed Mr Farooq representing the Respondent but not Ms Patterson. The Claimant questioned this, claiming she had not referred to Mr Farooq, only Ms Patterson. We reminded her it was the other way round and highlighted the criticism she had made of Mr Farooq when disputing his representation.

[35]The Claimant returned to this issue throughout the hearing, including during closing submissions.

[36]Before hearing any evidence, the Tribunal explained the process we would follow during the final hearing, including that witnesses would be asked to confirm their witness statements, and that the statement would for part of that witness’s evidence. We also explained to the Claimant that the purpose of cross examination was for counsel for the Respondent to put its case, and to challenge any aspects of the Claimant’s case it disagreed with. It was also explained to the Claimant that it was important that she focuses on the question being asked because it provided her with an opportunity to address those aspects of the Respondent’s case that were put to her.

[37]Despite this clear guidance, the Claimant repeatedly failed to answer questions put to her. Even when some questions were put multiple times in an attempt to obtain a response, she either responded in a way that failed to address the question asked, or on numerous occasions responded the question was not relevant and so refused to answer. She was repeatedly told that we would intervene if a question was inappropriate or irrelevant, and if we did not do so, she should answer the question, but this did not stop her responding in the same way.

[38]Also during cross examination, when asked about certain items on the list of issues that were not dealt with in her witness statement dated 10th September 2025 the Claimant objected to these, stating Ms Patterson should ask questions regarding her witness statement because that was her evidence, and she should not be asked about the list of issues because it is a document that Employment Judge Hart prepared.

[39]She was reminded her witness statement was adopted in support of her claim, and the list of issues sets out the matters we need to determine so it was important that we hear her evidence on those issues. The Claimant complained she considered she wasn’t being given an opportunity to have her say. This may have been because on occasions the Tribunal intervened when the claimant was not answering the question. We reiterated how it was beneficial to her case for us to hear her responses to the questions put, and also explained it was important part of our case management function to keep cross examination focussed on the relevant issues.

[40]The Claimant also objected to not being allowed to use her own bundle, or have access to her own papers, notes and laptop while giving evidence. She complained that she has never been required to do this before. Although she was told that is a requirement imposed on witnesses of fact during employment proceedings, even if a different practice was applied when she gave evidence as a social worker in family proceedings. The Claimant did not appear to be satisfied with that explanation.

[41]The Claimant complained that the Tribunal had interjected on various occasions while she was cross examining the Respondent’s witnesses, but had not done so while Ms Patterson was cross examining her. There were some, albeit limited interjections while Ms Patterson cross examined the Claimant, but that is because there were no grounds to interject at other times while the Claimant was being cross examined, whereas there were grounds to interject when the Claimant was cross examining witnesses.

[42]For instance, intending to provide some guidance for the claimant as a litigant in person when conducting litigation, it was explained to her that the purpose of cross examination is primarily twofold. The first purpose is to put her case to the respondent's witness. The second purpose is to deal with any aspects of the witness's case that she disputes. She was also directed to ask one question at a time during cross examination, that she must allow witnesses an opportunity to answer her questions, and she must ask questions only and not make statements. Despite that advice, the claimant repeatedly asked lengthy questions containing more than one question, she repeatedly made statements, and sought to ask questions about issues that are not in the case or are no longer in the case.

[43]For instance, when cross examining her former line manager, Mrs Mansfield, the claimant sought to elicit from her evidence regarding Mrs Mansfield's own sickness record. The claimant was told that that was not an appropriate line of questioning. Nonetheless, the claimant put the question again to Mrs Mansfield. Because the claimant had disregarded the tribunal's instruction, the tribunal asked her line manager not to answer the question. Despite which, the claimant put the question yet again, and then complained when Mrs Mansfield followed the Tribunal’s instruction by not answering the question. That was one of many examples of the claimants refusal to accept guidance.

[44]The claimant would repeatedly disregard requests to pause while people were looking for page references, and when asked to pause while people made notes, or to pause because it was simply not her turn to talk at that particular stage in the hearing. She complained bitterly about the number of times it was necessary to raise these points with her. She saw none of this was down to her own conduct. In fact, she emphatically complained about what she considered to be her ill treatment during the hearing, and did not accept that it was an attempt to case manage and to keep focus on the relevant issues. THE ISSUES FOR DETERMINATION

[45]Following all applications and case management orders, the remaining complaints and issues to be determined at the final hearing, as recorded in the case management order dated 13th February 2025 are set out in full in the Appendix. FINDINGS OF FACT

[46]The following findings of fact were reached on the balance of probabilities, having considered the witnesses’ evidence, including documents referred to in that evidence, and considering our assessment of the evidence.

[47]Only findings of fact relevant to the issues, and those necessary to determine the issues, have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. We have not referred to every document that we read and/or was taken to in the findings below, but that does not mean it was not considered if it was referred to in the evidence and was relevant to an issue.

[48]It is evident from its length that the claimant provided a detailed witness statement. However, most of the statement deals with the procedural history, some content relates to claims that have been withdrawn, and those aspects dealing with surviving complaints were relatively limited.

[49]Unless otherwise stated, the facts below are agreed or unchallenged.

[50]The Claimant commenced employment with the Respondent on 17 September 2007 as a Senior Practitioner within the Children’s Service Directorate. Her employment contract was signed on 25th September 2007, and shows her starting salary was £27,999 per annum, and she was on spinal point 31. An updated employment contract which took effect from 1st September 2010 shows her annual pay was £32,709, and she was on spinal point 35.

[51]Following changes to its allowance scheme, on 4th March 2022 the Respondent wrote to the Claimant informing her of these changes, in particular, regarding changes to the Business User Allowance with effect from 1st April 2022. The letter states that for the year 2021/2022 her salary excluding allowances was £45,168.00. This is consistent with her March 2022 pay slip, which shows that the Claimant’s spinal salary in that year was £45,168.00, but her gross annual pay was £54,717.00 when additional allowances were factored in, namely the Business User Allowance, Market Supplement and Retention Allowance. The letter also shows the Claimant’s spinal salary for the year 2022/2023 was £47,572.08 per annum.

[52]It is common ground that the Respondent’s occupational sick pay policy entitles an employee to six months full pay followed by six months half pay.

[53]It is also common ground that in around June 2021 the Claimant had a period of sick leave, during which she received sick pay, before returning to work. The Claimant’s final period of sick leave began on 16th November 2021, and she remained on sick leave until 9th September 2022 when her ill health retirement took effect.

[54]During this period, on 29th March 2022, the Respondent wrote to the Claimant explaining that her entitlement to full Occupational Sick Pay (“OSP”) would end on 18th April 2022, so from 19th April 2022 to 17th October 2022 she would be entitled to half OSP.

[55]There is a dispute regarding the Claimant’s sick pay entitlement during the final period of sick leave. She states that she was entitled to full pay for the first six months of this period of absence. The Respondent states she was entitled to full pay for the first five months due to the rolling 12 months’ sick pay policy. That is because, it says, the sick pay the Claimant received while on sick leave in June 2021 would be deducted from the six months full pay entitlement when her final period of sick leave began.

[56]The Respondent’s Managing Sickness Absence Policy is in the bundle, but the sick pay policy is not, the Respondent’s position is as set out in its letter to the Claimant dated 22nd March 2022. That letter states her full occupational sick pay was payable from 16th November 2021 to 18th April 2023, and from 19th April 2023 until 17th October 2023 she would be entitled to half occupational sick pay.

[57]We also note that the Managing Sickness Absence Policy is based on a 12 month rolling period of sickness. This apparent consistency between the 12 month rolling period triggering the long term sickness provisions in the Managing Sickness Absence, tends to lend support to the Respondent’s evidence, that sick pay was calculated on a 12 month rolling basis. Taking that into account alongside the Claimant’s payslips in the bundle, we find the Claimant has been paid in accordance with that letter, because the payslips show that she was paid for April 2022 the amount of her salary paid by BACS transfer was £2,581.09, and thereafter she received a lower amount, for instance in May 2022 she received £1,924.75.

[58]In light of the above, we do not consider the Claimant has shown that her wages were miscalculated. Instead the reduction in pay reflects the implementation of the Respondent’s occupational sick pay policy and the half payments she had been notified of in the letter sent to her on 29th March 2022.

[59]As to the amounts the Claimant was paid thereafter, her pay slips show her pay was as follows: March 2022 £4,559.75 (gross) April 2022 £3,786.63 (gross) May 2022 £2,692.01 (gross) June 2022 £2,294.62 (gross) July 2022 £2,254.87 (gross) August 2022 £2,254.87 (gross) September 2022 £1,134.23 (gross) October 2022 £6,148.14 (net PILON)

[60]During the Claimant’s final period of sick leave, the Respondent referred her to occupational health. In January 2022 Mrs Mansfield, who was the interim team manager, made a referral, which she said was based on advice from occupational health and HR. Amongst the information Mrs Mansfield provided occupational health, was information relating to the Claimant’s role. She said this was so that occupational health could provide informed advice regarding whether the Claimant was able to fulfil the requirements of her role. In the referral Mrs Mansfield raised a number of queries, including information regarding the Claimant’s mobility, ability to manage stairs, to drive, and typing.

[61]We accept Mrs Mansfield’s evidence that she asked occupational health the above mentioned questions because they were relevant to the Claimant’s role. Her evidence that the questions were relevant is supported by the Claimant’s job description in the bundle, and is further supported by the fact that she provided occupational health with a copy of the job description. The Claimant’s job required being able to carry out home visits out of typical office hours in areas with limited public transport services. Therefore, how long the Claimant could drive and walk is evidently relevant, as is information about her ability to manage stairs when visiting people’s homes.

[62]The Claimant accepted that report writing is part of the Senior Practitioner role, which also supports the relevance of Mrs Mansfield’s questions regarding the Claimant sitting and her being able to type.

[63]The Claimant attended a series of occupational health appointments including on 8 February 2022, on 3 May 2022, and on 7 June 2022. Following these assessments, on 23 August 2022, Occupational Health confirmed that it would apply on the Claimant’s behalf for ill-health retirement. On 9 September 2022, the Respondent received an Ill Health Retirement Certificate.

[64]In a letter dated 12th September 2022 the Claimant was informed that the application had been successful, her employment was terminated on the grounds of ill-health retirement effective from 9 September 2022, that she qualified for a Tier 1 pension, and would receive 12 weeks’ pay in lieu of notice (“PILON”). It is common ground that when she received the PILON it was paid net of deductions.

[65]On 21 September 2022, the Claimant contacted HR to report an error in the spelling of her name on the termination letter.

[66]Around the same time payroll began processing the Claimant’s pension, and completed the first EPF68 form with a final salary figure of £45,565.27.

[67]On 23 September 2022, HR issued an amended version of the termination letter to the Claimant.

[68]It was on this date (i.e. 23rd September 2022) that the Claimant alleged that Ms Laura Witts, Payroll Services Manager, became abusive and aggressive towards her during a telephone conversation, stating that the Claimant had been overpaid, consequently £467 would be deducted from her October pay slip. Ms Witts does not recall the conversation but states she would not have acted in the way alleged by the Claimant.

[69]We prefer Ms Witts written and oral evidence denying that she was aggressive or abusive during a telephone conversation on 23rd September 2022. We accept her evidence for a number of reasons. Firstly, there was not anything intrinsically aggressive or abusive about the words attributed to her by the Claimant. While it can be appreciated the Claimant would be displeased about being told her October pay would be subject to a deduction, that in itself is not abusive or aggressive.

[70]Secondly, when cross examining Ms Witts, the Claimant’s position altered somewhat in that she said that Ms Witts had spoken in a sharp way and a direct manner. The Claimant added that at least that is how she had perceived Ms Witts manner. We were impressed with the clarity and focus of Ms Witts evidence, and to that extent she could be described as direct. But from the written and oral evidence, and the way the Claimant now frames this allegation, we are not persuaded that Ms Witts was aggressive or abusive.

[71]We also accept Ms Witts account that she is conscious that she is dealing with people’s salaries, and so deals with colleagues sensitively, that she has had no complaints nor have her managers ever had any cause to raise her telephone manner with her.

[72]Finally, as regards the allegation against Ms Witts, the Claimant stated for the first time during the hearing that she had made a note of the telephone conversation with Ms Witts because she felt so strongly about how Ms Witts had allegedly spoken to her. However, we have not seen this contemporaneous note, and in the Claimant’s contemporaneous e-mails dealing with the same subject matter of her discussion with Ms Witts, the Claimant does not raise any concerns regarding Ms Witts manner during the telephone conversation.

[73]There is also a dispute between the parties regarding the Claimant’s unused annual leave. It is common ground that the Claimant’s contractual entitlement to holiday is 30 days per annum. When calculating her unused annual leave entitlement on termination of her employment the Claimant based her calculations on her contractual annual leave entitlement. This is seen in her email sent to Ms Harris, Ms Clements, Ms Witts and Ms Whiberley on 15th November 2022. In that e-mail she writes: However, I have as well noted that the A/L and Sick Leave days were not fully, fairly calculated. Considering that the A/L payment of 202,13 Hours equating 27,31 days represented 14 days carried over from 2020-2021 and only 13,31 days from the 30 days entitlement from current year 2021-2022. Furthermore, at least five days leave entitlement could have been paid, as per ‘Termination of Employment Policy’, paragraph 6.8, staff “will be entitled in their final year to take an additional five days’ paid leave in-block” and “up to five further days set aside for a pre-retirement course”, which I have also attended through the July Webinar.

[74]Therefore, the Claimant’s position is that she was entitled to be paid for 44 days unused annual leave when her employment ended.

[75]The claimant’s e-mail also refers to being entitled to an additional 5 days preretirement annual leave which she states she has not taken or been paid for. Although during cross examination the Claimant confirmed that she had attended a one day online retirement course in July, and she also accepted attending such courses was one purpose of the additional 5 days leave.

[76]On 25th November 2022 Ms Witts responded to the Claimant’s e-mail, stating: On checking Oracle your annual leave entitlement was as follows: 1st April to 9th September 2022 accrual = 98.53 hours plus carryover leave of 103.60 hours, totalling 202.13 hours to be paid.

[77]The Respondent maintained that position in its Amended Grounds of Resistance.

[78]It would have been preferrable to have had a copy of the written annual leave policy in the bundle, but we did not. So we had to decide whether we preferred the Claimant’s account that she was entitled to 44 days, or the Respondent’s that she was entitled to 27.31 days.

[79]As it is the Claimant maintaining she has not been paid the correct annual leave it would be for her to prove this on the balance of probabilities, and we are not satisfied that she has done so because compared to the Respondent’s precise calculations, certain aspects of her evidence are imprecise. For instance her claiming the full 5 days while later accepting she had used one day. The Claimant has also not provided any evidence to counter the Respondent’s explanation that her entitlement was correctly calculated based on her statutory annual leave rather than contractual leave.

[80]In particular, Ms Harris’ oral evidence regarding annual leave entitlement in these circumstances is clear. Ms Harris stated that ordinarily an employee may carry over 5 days of annual leave, however, where an employee has been on long term sick leave they may carry over any unused statutory annual leave days being the balance of the statutory 20 day allowance, as distinct from unused contractual annual leave, which in the Claimant’s case is 30 days per annum.

[81]As to the additional 5 days annual leave for those approaching retirement, Ms Harris’ evidence was that this was available to be taken en bloc as part of an employee’s planned retirement, so there was no entitlement where an employee retired due to ill-health. The Claimant did not put forward any evidence or grounds for challenging Ms Harris’ evidence, which we therefore accept.

[82]It is common ground that based on the length of her service, the Claimant is entitled to 12 weeks’ pay in lieu of notice. It is also common ground that this payment should be made on the basis of gross contractual pay. The Respondent initially believed it should be 12 weeks net pay, which was reflected in the amount paid to her in October 2022.

[83]The Claimant maintains the 12 weeks gross pay should be based on her salary of £55,000, which she states comprises spinal pay and pay protection. It means if the Claimant is correct, we calculate she should have received approximately £12,700. However, the Respondent states the Claimant’s annual gross contractual pay comprises spinal pay and pay protection only, and it is only when non-contractual payments she receives as a market supplement and retention allowance are added that her salary totals £55,000. It also states the latter two payments are not factored in when calculating PILON. Accordingly, she is entitled to £10,659.23, which is the amount she eventually received.

[84]Dealing firstly with the elements of this payment, although we do not have the Respondent’s written policy in the bundle to support its position, we do have some of the Claimant’s payslips. From these it is evident that her £55,000 annual salary does not comprise only the spinal pay and pay protection as she contends, the gross figure includes the market supplement and retention allowance. This is consistent with the letter sent to her on 4th March 2022 stating her 2022/2023 annual salary was £47,572.08 (see paragraph 51 above). It means the Claimant’s calculations are based on a mistaken premise.

[85]Secondly, dealing with whether the Claimant was paid for PILON for six weeks instead of 12 weeks. Her pay slip for October 2022 is in the hearing bundle, and shows the gross amount was £10,659.23, which we find is 12 weeks’ payment when considered against the amount she receives for spinal pay and pay protection.

[86]Finally regarding PILON, the Respondent initially paid this in October 2022 less tax and national insurance. Mr Brown and Ms Witts’ evidence was that they had always considered PILON to be subject to tax and NI deductions. In other words, that had been their approach in all cases irrespective of whether the employee was disabled. We have no reason to dispute their evidence that this was their approach in all cases. Based on the evidence available to us, in particular the numerous e-mail exchanges with the Claimant, they have endeavoured to deal with the Claimant’s pay fairly, and they have acted in good faith. Therefore, we accept their evidence this error represents their previous approach in all cases.

[87]In around October 2023, after taking legal advice, the Respondent accepted the Claimant was entitled to PILON based on gross pay, and the deductions were repaid to her on 5th October 2023 when she received £4,518.39

[88]The Claimant claims there was an underpayment due to a deduction from her October 2022 wages. The list of issues refers to this as £492.73, but on checking the Claimant’s October 2022 payslip, there is a deduction of £467.04. We do not understand there to be any dispute that the deduction in question is £467.04, but if there is, we rely on the payslip showing it was £467.04 and not £492.73.

[89]We note that the £467.04 on the payslip is described as an occupational sick pay (“OSP”) adjustment.

[90]The Claimant states that deduction amounts to an underpayment. The Respondent maintains the deduction is to correct an overpayment made in September 2022

[91]The Claimant disputes that there was an overpayment in September 2022. She deals with this in her witness statement dated 10th September 2025 at the top of page 14, where she disputes being overpaid, and therefore asserts the recoupment amounts to an underpayment.

[92]However, we consider the payslips support the Claimant’s September 2022 salary included an overpayment. That is because the Claimant’s gross pay in August 2022, when she was paid for the full month, was £2,254.87. In September she would have been paid from the 1st to 9th September, and one would expect her gross pay in September to be approximately 1/3 of her August pay, which would be just over £750. However, the Claimant’s gross September pay was £1,134.23. This does indicate an over payment.

[93]Ms Witts explained the overpayment was due to a system error which meant the payment the claimant received in September 2022 didn’t fully take into account that the 9 days’ pay should have been payment at 50% because she was receiving sick pay.

[94]As stated, on the face of it, comparing the August and September 2022 payments against the days she was paid for in these respective months, on the balance of probabilities there was an overpayment as explained by Ms Witts. We note Ms Witts evidence is supported by the Claimant’s payslip which shows the £467.04 was an adjustment of OSP, which is consistent with the system error Ms Witts describes. We therefore accept the Respondent’s evidence on this point.

[95]On 23 December 2022, Ms Witts completed a further EPF68 form with a revised final salary figure of £53,812.48.

[96]During the above period the Claimant had been exchanging various e-mails regarding her pay and pension. A number of these seem to be exchanges between the Claimant and Ms Jemma Clements in HR, such as e-mails sent on 23rd September 2022, 4th October 2022, 10th October 2022. Other e-mails were sent to and copied to multiple recipients. For instance on 21st September 2022 she sent an e-mail to HR, copying Ms Harris, and on 14th November 2022 she sent an e-mail to the Pensions Service, again copying Ms Harris. The Claimant’s e-mail sent on 15th November 2022 was addressed to Ms Harris, and copied to Jemma Clements, Payroll and HR. On 25th November 2022 she sent an e-mail to Ms Harris, Ms Clements, HR and Payroll, and copied the Pension Service. Ms Harris e-mailed Ms Witts about the latter e-mail which stated: Hi Laura Marcela has sent another email through – do you want to reply and say that a response went to her earlier today or should I do it?

[97]The Claimant also sent an e-mail on 28th November 2022 to Ms Harris, Ms Clements, Ms Witts, HR and Payroll, and would have received Ms Harris’ outof-office message.

[98]The Claimant complains that Ms Harris failed to engage with her between September 2022 to 17th May 2023. Indeed, we note that there was no or very little direct contact between Ms Harris and the Claimant between September 2022 to 17th May 2023. However, we would not characterise this as a failure to engage with the Claimant. The term failing to engage implies a requirement or legitimate expectation of engagement which has not been fulfilled. In this case we accept Ms Harris’ evidence that she was not directly involved in the claimant’s case.

[99]That is because Ms Harris’ evidence at paragraph 4 of her witness statement is that her role is strategic, as her job description is: To lead on transformation and continuous improvement working with key stakeholders to provide challenge in the development and delivery of business strategy and transformation and change. To work with key stakeholders to build organisation and people capability, and shape and implement effective people strategies and activities within the organisation.

[100]The Claimant accepted during cross examination that she had no knowledge of Ms Harris’ job description, and she did not dispute Ms Harris’ evidence on that point.

[101]Although the Claimant criticised Ms Harris’ alleged non-engagement, we saw a number of e-mails were copied to, rather than sent to, Ms Harris. Furthermore, the Claimant received responses to all her e-mails as shown in the bundle. Yet further, in November 2022 Ms Harris made enquiries of Ms Witt to ensure the Claimant received a response to an e-mailed she had sent. This is another reason why we find the allegation of non-engagement is not made out despite the limited direct conduct from Ms Harris.

[102]Amongst the Claimant’s e-mail correspondence were various exchanges with Mr Brown regarding her pension, who e-mailed spreadsheets to the Claimant showing his calculations of what she was entitled to with a view to trying to reach an agreed salary figure. In due course Mr Brown offered to meet the Claimant to discuss the matter. That meeting took place on 17th May 2023, when Ms Harris was present: she attended in the capacity of an HR observer.

[103]The Claimant alleges that during this meeting she was informed the Respondent had not applied its pay policy due to the Claimant’s sickness. It was put to the Claimant in cross examination that she had failed to specify which policy this allegation relates to, and when asked which policy she was referring to, she was unable to specify.

[104]Mr Brown and Ms Harris, who were both at the meeting, state this comment was not made. Mr Brown’s evidence is that he would not make such a comment. While he accepted the Respondent is in financial difficulty, he made clear that those difficulties did not impact on it fulfilling its mandatory obligation to pay its staff.

[105]Taking into account that we have found the Respondent has applied the specific provisions of the policies we have been referred to and dealt with, and absent any clear information about which provision this allegation relates to, we accept Mr Brown’s evidence that the Respondent fulfils its obligation to pay its employees.

[106]The final EPF68 form is dated 14th September 2023, it was completed by Mr Brown showing a final salary figure of £55,073.74. He stated this figure was slightly higher than his own calculation, but he was willing to agree it to move things along.

[107]The Claimant states Mr Brown asked her to approve the EPF68 dated 14th September 2023, even though, she says, it was incorrectly completed. Mr Brown’s evidence is that it was a document that the employee would not normally see, that it was only sent to the Claimant in this instance because she asked for it, and he provided as a matter of courtesy, and not for her to review or approve.

[108]We prefer Mr Brown’s evidence because on this point because firstly, the email correspondence supports this. We have the Claimant’s e-mail at page 454 requesting the EPF68. Secondly, there is no evidence that the previous EPF68 forms were sent to the Claimant, which again supports the position that they generally are not sent to the employee.

[109]We also do not accept that the form was incorrectly completed. We accept that not all areas of the form had been populated, but Mr Brown explained that was because the only outstanding information the pension fund required was the Claimant’s salary as all other information had been previously provided. The reason we accept that is because we have copies in the bundle of the two previous EPF68 forms which show that the other required information had already been provided. THE LAW Time Limits

[110]Section 123(1)(a) of the Equality Act 2010 provides that a claim must be brought within three months, starting with the date of the act to which the complaint relates.

[111]The three-month time limit is paused during ACAS early conciliation: the period starting with the day after conciliation is initiated, and ending with the day of the ACAS certificate, does not count (section140B(3) the Equality Act). If the ordinary time limit would expire during the period beginning with the date on which the employee contacts ACAS, and ending one month after the day of the ACAS certificate, then the time limit is extended, so that it expires one month after the day of the ACAS certificate (section 140B(4) the Equality Act).

[112]Section 123(3)(a) of the Equality Act provides that conduct extending over a period is to be treated as done at the end of the period. In Hendricks v Commissioner of Police of the Metropolis

[2003] ICR 530

, the Court of Appeal held that Tribunals should not take too literal an approach: the focus should be on the substance of the complaint that the employer was responsible for an ongoing situation or a continuing state of affairs, in which an employee was treated in a discriminatory manner.

[113]Section 123(1)(b) of the Equality Act provides that the Tribunal may extend the three-month limitation period, where it considers it just and equitable to do so. That is a very broad discretion. In exercising it, the Tribunal should have regard to all the relevant circumstances, which may include factors such as: the reason for the delay; whether the Claimant was aware of the right to claim and/or of the time limits; whether they acted promptly on becoming aware of their rights; the conduct of the employer; the length of the extension sought; the extent to which the cogency of the evidence has been affected by the delay; and the balance of prejudice (Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

). Discrimination under the Equality Act

[114]The Equality Act 2010 sets out the legislative provisions relevant to the complaints of discrimination in this case. An explanation of the Act’s provisions are contained in the Employment statutory code of practice published by the Equality and Human Rights Commission (the “Code”), which is a tool to assist tribunals when interpreting the law.

[115]Section 4 of the 2010 Act lists the protected characteristics covered by its provisions, which includes age, disability, and sex. Direct Discrimination

[116]Section 13(1) of the Equality Act 2010 states: 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.

[117]Under section 13(1) of the Equality Act 2010 direct discrimination takes place where a person treats the claimant less favourably because of their protected characteristic than that person treats or would treat others. Under section 23 (1), when a comparison is made, there must be no material difference between the circumstances relating to each case. Harassment

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

[119]Paragraph 7.9 of the Code states: Unwanted conduct “related to” a protected characteristic has a broad meaning in that the conduct does not have to be because of the protected characteristic. Discrimination Arising From Disability (section 15)

[120]Discrimination arising from disability is dealt with at section 15, which includes the following: (1) A person (A) discriminates against a disabled person (B) if- (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

[121]Paragraph 5.7 of the Code states: For discrimination arising from disability to occur, a disabled person must have been treated “unfavourably”. This means that he or she must have been put at a disadvantage.

[122]The Code continues: 5.8 The unfavourable treatment must be because of something that arises in consequence of the disability. This means that there must be a connection between whatever led to the unfavourable treatment and the disability. s.15(1)(a) 5.9 The consequences of a disability include anything which is the result effect or outcome of a disabled person’s disability.

[123]In Trustees of Swansea University Pension and Assurance Scheme and another v Williams [2019] 1 W.L.R. 93 Lord Carnwath said the following about the term “unfavourable”: While the passages in the Code of Practice … cannot replace the statutory words, they do in my view provide helpful advice as to the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section.

[124]As to the defence set out at section 15(1)(b) of the Act, paragraph 5.11 of the Code states: Unfavourable treatment will not amount to discrimination arising from disability if the employer can show that the treatment is a proportionate means of achieving a legitimate aim.

[125]Therefore, if a claimant establishes a prima facie case, the burden shifts to the respondent to prove the unfavourable treatment can be justified (Starmer v British Airways

[2005] IRLR 862

[126]Justification involves a three-staged analysis:126.1 Did the respondent have a legitimate aim?;

126.2 Did the respondent’s treatment of the claimant achieve a legitimate aim?; and

126.3 Was the respondent’s treatment of the claimant a proportionate means of pursuing that legitimate aim? Burden of Proof

[127]Section 136 of the Act deals with the burden of proof, and includes the following:(1) This section applies to any proceedings relating to a contravention of this Act.

(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.

[128]Therefore, determining whether the burden of proof has been discharged involves a two-fold test.

[129]Guidelines on the burden of proof were set out by the Court of Appeal in Igen v Wong

[2005] IRLR 258

. At stage one, the burden is on the claimant, who must show there are primary facts from which the Tribunal could decide, in the absence of any other explanation, that there has been unlawful conduct. All that is needed at this stage are facts from which an inference of prohibited conduct is possible. At this stage of the test, the employer’s explanation is disregarded.

[130]Once the claimant discharges the burden of proof it shifts to the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of the protected characteristic.

[131]The Court of Appeal in Madarassy v Nomura International plc

[2007] ICR 867

, a case brought under the then Sex Discrimination Act 1975, states: The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (e.g. sex) and a difference in treatment. Those bare facts 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. CONCLUSIONS ON THE ISSUES

[132]We have applied the above law to the findings of fact that we made in order to answer the questions raised by the issues, and our conclusions on those issues are set out below. In doing so we have taken into account the parties’ evidence, arguments and submissions. Time Limits Were the complaints made within the time limit in section 123 of the Equality Act 2010? Namely, within three months (plus early conciliation extension) of the act to which the complaint relates?

[133]The complaints relied on cover the period from January 2022 to September 2023. The claim form was presented on 27th October 2023. The respondent maintains that any acts relied on prior to 22nd May 2023 are outside the time limit, the Claimant’s main response to this is that her complaints are all part of the same continuing act extending over the relevant period allowing for early conciliation.

[134]Having regard to the date early conciliation began, and having heard no argument to the contrary, we find that, allowing for the early conciliation extension, isolated specific acts taking place prior to 22nd May 2022 would be outside the statutory time limit at section 123(1)(a).

[135]It means that unless the matters complained of are part of conduct extending over a period of time that ended on or after 22nd May 2023, isolated specific acts which took place between January 2022 to 21st May 2023 would be out of time. If not, was there conduct extending over a period?

[136]The Claimant’s complaints fall into two broad aspects. The first concerns complaints regarding errors in her pay, resulting in her not receiving the correct amount. We consider that the non-payment of tax and national insurance for the PILON is within the time limit. We also consider that the substance of this complaint, namely, that her pay was miscalculated, amounts to a continuing situation over the numerous months identified in the list of issues. This is more than a deduction; it relates to both deductions and the ongoing non-payment. Therefore, we find it to be a continuing act that ended on 4 October 2023, before she received the payment tax and national insurance in respect of the PILON on 5th October 2023.

[137]The second aspect of the claim relates to the mistakes regarding her pension, including the figure for her final salary that should be used to calculate the amount of her pension. Accordingly, the substance of her complaint that the EPR68 from 15th September 2023 was inaccurate, is part of conduct extending over a period relating to her pension. Because that act was within the time limit, the other related conduct connected to complaints about her pension, we find were part of conduct that extended over a period of time.

[138]We find this conclusion is supported by the decision in Hendricks which states: Instead, the focus should be on the substance of the complaint that the commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the service were treated less favourably. The question is whether that 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.

[139]Therefore, we consider the complaints regarding the unpaid amounts of the Claimant’s pay, and the sums used to calculate her pension entitlement, amount to an act extending over a period of time.

[140]In relation to the corresponding complaints as set out in the list of issues, which form part of conduct extending over a period of time, we consider it applies to the following issues:140.1 The complaint of direct disability discrimination;

140.2 The complaint of harassment related to disability;

140.3 The complaint of direct sex discrimination; and

140.4 The complaint of harassment related to sex.

[141]With each of the complaints at paragraphs 140.1 to 140.4 above, the end of the period over which the conduct extends is after 22nd May 2023, accordingly, we find those claims were brought within the time limit prescribed by section 123(3).

[142]We do not consider this applies to the section 15 claim, or the section 13 and section 26 claims in respect of age. If not, were the claims made within a further period that the Tribunal thinks is just and equitable?

[143]In light of paragraph 142 above, we need to determine whether the allegations in relation to the remaining claims, namely under section 15, and the section 13 and section 26 claims in respect of age, relate to acts that occurred before 22nd May 2023, and if so, whether it is just and equitable to extend the time limits to cover these claims.

[144]The basis of the claims under section 15, and sections 13 and 26 as they relate to age, are at paragraphs 145 to 149 below.

[145]Regarding discrimination arising from disability as it relates to payments, the Claimant relies on the following allegations:145.1 underpayment of £2643.13 from April 2022 to September 2022;

145.2 non-payment of sick pay of £4625 between April and May 2022;

145.3 underpayment of sick pay of £289 between May to September 2022;

145.4 non-payment of pay of £571 between 9 September and 20 October

145.5 underpayment of sick pay of £7268 up to 20 October 2022.

[146]Discrimination arising from disability also relates to Mrs Mansfield’s referral to occupational health in January 2022.

[147]The final allegation regarding discrimination arising from disability relates to the meeting between the Claimant, Ms Harris and Mr Brown on 17 May 2023.

[148]As the Claimant has not succeeded in proving the claims listed at paragraphs 145 to 147 above, we do not consider it is just and equitable to extend the time in respect of claims that we have found to be unmeritorious, irrespective of whatever reasons there may be for the complaints not being brought in time.

[149]Similarly, the complaint of direct age discrimination and harassment related to age, which rely on the allegation relating to Mrs Mansfield’s occupational health referral made in January 2022. We have found this allegation is not well-founded. Accordingly, we do not consider it is just and equitable to extend the time to bring these complaints. Disability

[150]The Claimant’s case is that she is disabled as a result of the following conditions:150.1 Covid 19 / Long COVID;

150.2 Asthma;

150.3 Diabetes type 2;

150.4 Arthritis;

150.5 Lung and Respiratory problems;

150.6 Kidney problems;

150.7 Osteoarthritis of knees and hands;

150.8 Carpal Tunnel Syndrome;

150.9 Left Rotator cuff Arthropathy;

150.10 Cervical and Lumbar Spondylosis;

150.11 Hypothyroidism; and

150.12 Cardio-circulatory, Arrythmia.

[151]The Respondent accepts that the claimant is disabled as a result of the following conditions:151.1 Asthma from 23 September 2019 onwards;

151.2 Covid / long covid from 23 November 2021 onwards;

151.3 Diabetes type II from February 2021 onwards; and

151.4 Arthritis from January 2021 onwards.

[152]At the final hearing, Ms Patterson stated she would not be making submissions regarding whether the Claimant was disabled as a result of any of the other medical conditions relied on. Although, the Respondent did not concede the Claimant was disabled as a result of the medical conditions at paragraphs 150.5 to 150.12 above, absent any submissions on the point, we accept that the Claimant is disabled as a result of all the medical conditions referred to at paragraphs 150.1 to 150.12 above. Observations Regarding the Sex Discrimination Claim

[153]The Claimant’s written and oral evidence is that sex discrimination is not and never has been part of her claim. In fact at times during the final hearing, she seemed offended that it had been included as part of her claim when she had not raised it.

[154]During cross examination the Claimant was asked in a variety of ways about the sex discrimination claim, but she was adamant she had not brought such a claim.

[155]To ensure there was no misunderstanding regarding terminology, the Tribunal explored with her whether she saw a distinction between discrimination on the grounds of sex and discrimination on the grounds of gender, she responded that they were related. Indicating there was no material misunderstanding. But what satisfied us that the Claimant properly understood the issue is that Ms Patterson asked the Claimant whether she considered the way Ms Witts, Mr Brown and Ms Harris treated her was because she was a woman. She stated it was not. Equal Pay

[156]Instead, the Claimant states that it is an Equal Pay claim, and not sex discrimination, that she wishes to pursue. However, we note that the case management order made on 13th February 2025 records that the Claimant withdrew the equal pay claim, and the Claimant has not sought to appeal that aspect of the case management order. The Equal Pay claim is not specified in the dismissal judgment dated 21st February 2025, which refers to various other claims that the Claimant withdrew. Nonetheless, pursuant to rule 51, the Equal Pay claim must be treated as withdrawn.

[157]In any event, it is not included in the list of issues and there has been no disclosure or evidence from the Respondent regarding an Equal Pay claim. Instead, the Amended Grounds of Resistance expressly refer to the Equal Pay claim being withdrawn, accordingly the Amended Grounds of Resistance do not deal with this either.

[158]As to the omission of Equal Pay from the list of issues, by paragraph 12 of the case management order made on 13th February 2025 the parties were afforded an opportunity to correct the list of issues by 13th March 2025. The Claimant e-mailed the Tribunal on 13th March 2025 requesting an extension until 27th March 2025 to deal with any corrections to the list of issues, however, she received no response. She says, she therefore proceeded on the basis that her request had been granted. We find absent her request being refused, it was reasonable for the Claimant to proceed on the basis that she had until 27th March 2025 to propose any amendments to the list of issues.

[159]However, in the event, the Claimant did not write to the Tribunal regarding any changes she wished to make to the issues to be determined until 8th September 2025. Furthermore, she did not make an application to request the list of issues be amended, but dealt with the list of issues by submitting documents setting out the issues in the case as she sees them. Consequently, it was only while she was being cross examined, and when she was repeatedly asked about the list of issues that it became clear she considered the issues to be determined by the Tribunal should include an Equal Pay claim. It was at this stage that the Claimant maintained then she wanted to be asked questions about the documents she had provided dated 8th September 2025, and not the list of issues in the case management order because the latter represented Employment Judge Hart’s view of her claim, and not her position.

[160]It was too late at that stage to deal with this because the Claimant was in the middle of giving evidence, and had not raised this as an issue when asked at the start of the hearing whether there were any issues that needed to be dealt with before we started. Instead, when the Claimant referred to the 8th September 2025 documents, she had informed us that she would be relying on these to determine the amount of compensation.

[161]For these reasons, the Tribunal has not dealt with Equal Pay. DIRECT DISABILITY DISCRIMINATION

[162]In our judgment, Ms Harris did not fail to engage with the Claimant as stated at paragraphs 98 to 101 above.

[163]In any event, even if, contrary to our finding, there was a failure to engage, there is no evidence whatsoever to indicate that any failure to engage was on the grounds of the Claimant’s disability.

[164]Therefore, we conclude the claimant has failed to discharge the burden of proving there is evidence from which it could be inferred that, if there was less favourable treatment, it was due to her disability.

[165]The claimant argues she had a fit note covering her until 20th October 2022, and so should at least have been paid up to that date.

[166]The Respondent’s position is that the claimant’s employment ended on 9th September 2023, therefore, it is not liable to pay the Claimant in respect of any period after that date.

[167]The claimant indicated on her claim form that the effective date of termination was 9th September 2023. We therefore find that was the effective date of termination. We do not consider a fit note is capable of extending the Respondent’s contractual obligation to continue paying the Claimant.

[168]Therefore, we conclude the claimant has failed to discharge the burden of

[169]Apart from the erroneous deduction of tax and national insurance, which is dealt with at paragraphs 82 to 94 above, and for the reasons stated therein, we do not consider there was an underpayment of PILON of £467.04 (or £492.73) in October 2022.

[170]In the circumstances, we conclude the claimant has failed to discharge the burden of proving there is evidence from which it could be inferred that, the Respondent subjected her to the treatment alleged, and that it was less

[171]The Claimant’s position is that according to the letter sent to her on 22nd March 2022, she was entitled to sick pay until 16th November 2022.

[172]The Respondent’s position is that the claimant’s employment ended on 9th September 2023, therefore, it is not liable to pay the Claimant in respect of any period after that date, such as from 19th October 2022 until 16th November 2022.

[173]We consider under the Respondent’s policy the Claimant may have been entitled to sick pay up to 16th November 2022 if she had remained an employee. However, as her employment ended on 9th September 2022, the Respondent’s letter dated 22nd March 2022 would not extend its liability to pay sick pay after her employment contract ended.

[174]Therefore, we conclude the claimant has failed to discharge the burden of

[175]Having accepted the Respondent’s account that the Claimant’s annual leave was correctly calculated (see paragraphs 73 to 81 above), we conclude the claimant has failed to discharge the burden of proving there is evidence from which it could be inferred that, the Respondent subjected her to the treatment

[176]Having regard to paragraphs 82 to 87 above, the Claimant has shown that there was an underpayment of PILON made in October 2022, because she was erroneously paid this based on her net pay, instead of gross pay.

[177]We therefore need to consider whether this was less favourable treatment. As stated above, we accept Mr Brown and Ms Witt’s evidence that this had been their approach in all cases. Consequently, this would not amount to less favourable treatment.

[178]Nonetheless, even if this was less favourable treatment, we do not consider it was in any way whatsoever because of the Claimant’s disability. Although it is accepted the Claimant is disabled and that she was initially underpaid, it does not follow that the underpayment was because of her disability. The Claimant has not provided any basis for us concluding the treatment was because of her disability.

[179]Our findings on this are at paragraphs 106 to 109 above. In light of those findings, we conclude the claimant has failed to discharge the burden of proving there is evidence from which it could be inferred that, Mr Brown

[180]When making findings of fact above, we have explained our reasons for preferring Ms Witts’ evidence that she was neither abusive or aggressive towards the Claimant on 23rd September 2022 (see paragraphs 68 to 72 above).

[181]Having rejected the Claimant’s factual account of this incident, we conclude the claimant has failed to discharge the burden of proving there is evidence from which it could be inferred that, Ms Witts subjected her to the treatment

[182]It was put to the Claimant in cross examination that she had not dealt with this allegation in her witness statement dated 10th September 2025, which the Claimant did not accept. However, when she was asked to show where in her witness statement dated 10th September 2025 she had explained the calculations for this alleged underpayment, she was unable to do so.

[183]The Claimant stated that she wished to rely on other witness statements she had prepared. However, the Claimant did not specify which statement, or where it was in the bundle, therefore this aspect of the claim has neither been adequately set out or particularised.

[184]In the circumstances, we conclude the claimant has failed to discharge the burden of proving there is evidence from which it could be inferred that, the Respondent subjected her to the treatment alleged, and that it was less

[185]For the reasons stated at paragraph 54 to 58 above, we have found there was no underpayment of sick pay. Therefore, we conclude the claimant has failed to discharge the burden of proving there is evidence from which it could be inferred that, the Respondent subjected her to the treatment alleged, and that it was less favourable treatment due to her disability.

[186]It was put to the Claimant in cross examination that she had not dealt with this allegation in her witness statement dated 10th September 2025, and when asked to show where in her written evidence she had explained the calculations for this alleged underpayment, she was unable to do so.

[187]In the circumstances, without any adequate explanation regarding the basis of the alleged underpayment, we conclude the claimant has failed to discharge the burden of proving there is evidence from which it could be inferred that, the Respondent subjected her to the treatment alleged, and that it was less

[188]The Respondent’s position is that the claimant’s employment ended on 9th September 2022, therefore, she would not be entitled to be paid in respect of any period after that date.

[189]For the reasons previously stated, we find there was no obligation to pay the Claimant wages in respect of any period postdating the termination of her employment.

[190]Accordingly, we conclude the claimant has failed to discharge the burden of

[191]When the Claimant was asked whether this issue during cross examination she said this complaint was about being on 50% sick pay from 18th April 2022, she confirmed it was. She added that she did not receive any occupational sick pay from 9th September 2022 until 20th October 2022.

[192]We find that this aspect of the claim fails because we consider the Respondent has correctly applied its 50% occupational sick pay based on the rolling 12 month provision for the reasons stated at paragraphs 54 to 58 above. We also find that for the reasons stated at paragraphs 165 to 167 above, the Claimant was not entitled to pay in respect of the period 9th September 2022 to 20th October 2022.

[193]Therefore, we conclude the claimant has failed to discharge the burden of subjected her to less favourable treatment because of her disability.

[194]We have found that these questions were appropriate for the Respondent to identify how it might support the Claimant in fulfilling her role (see paragraphs 60 to 62 above). We therefore do not find this pre-emptive step to support the Claimant amounts to less favourable treatment.

[195]As stated at paragraphs 102 to 105 above, we prefer the Respondent’s evidence on this issue.

[196]It follows we consider the claimant has failed to prove that the Respondent did not apply the unspecified pay policy, and this also supports Mr Brown and Ms Harris’ account that they did not make this statement. Consequently, the Claimant has failed to discharge the burden of proving there is evidence from which it could be inferred that, the Respondent subjected her to the treatment HARASSMENT RELATED TO DISABILITY

[197]The acts relied on in support of the claim for direct discrimination are also relied on by the Claimant to support the claim of harassment related to disability. Our findings on these, as they relate to harassment, are set out below.

[198]We find this complaint is not made out for the reasons stated at paragraphs

[199]We find this complaint is not made out for the reasons stated at paragraphs

[200]We find this complaint is not made out for the reasons stated at paragraphs

[201]We find this complaint is not made out for the reasons stated at paragraphs

[202]We find this complaint is not made out for the reasons stated at paragraphs

[203]We find this complaint is not made out for the reasons stated at paragraphs

[204]We find this complaint is not made out for the reasons stated at paragraphs

[205]We find this complaint is not made out for the reasons stated at paragraphs

[206]We find this complaint is not made out for the reasons stated at paragraphs

[207]We find this complaint is not made out for the reasons stated at paragraphs

[208]We find this complaint is not made out for the reasons stated at paragraphs

[209]We find this complaint is not made out for the reasons stated at paragraphs

[210]We find this complaint is not made out for the reasons stated at paragraphs

[211]We find this complaint is not made out for the reasons stated at paragraphs 194 above.

[212]We find this complaint is not made out for the reasons stated at paragraphs DISCRIMINATION ARISING FROM DISABILITY

[213]We find this complaint is not made out for the reasons stated at paragraphs

[214]We find this complaint is not made out for the reasons stated at paragraph

[215]We find this complaint is not made out for the reasons stated at paragraphs

[216]We find this complaint is not made out for the reasons stated at paragraphs

[217]We find this complaint is not made out for the reasons stated at paragraphs

[218]We find the referral to occupational health, and the questions Mrs Mansfield raised as part of the referral did arise as a consequence of the Claimant’s disability. We accept Mrs Mansfield’s evidence that due to the Claimant being on sick leave, she was seeking advice on how the Claimant could be supported if she returned to work as a senior practitioner.

[219]However, we do not consider Mrs Mansfield’s actions including the referral or the questions asked, amount to unfavourable treatment, because we do not consider seeking specialist advice on how to support someone can properly be characterised as unfavourable.

[220]In the circumstances, we accept Mrs Mansfield had a legitimate aim in requesting the information. We also consider that by asking these questions, Mrs Mansfield achieved that aim by gaining an understanding of the Claimant’s needs in order to fulfil the role. Finally, we consider requesting the information from occupational health was an appropriate means of achieving that aim. Occupational health have the specialist clinical knowledge, they assessed the Claimant, and so were able to report back and address the questions Mrs Mansfield had raised.

[221]Therefore, we find the complaint is not made out.

[222]We find this complaint is not made out for the reasons stated at paragraphs DIRECT SEX DISCRIMINATION

[223]Except for the allegation at paragraph 194 above, the acts relied on in support of the claim for direct disability discrimination are also relied on by the Claimant to support the claim of direct sex discrimination. Our findings on these, as they relate to direct sex discrimination, are set out below.

[224]We find this complaint is not made out for the reasons stated at paragraphs

[225]We find this complaint is not made out for the reasons stated at paragraphs

[226]We find this complaint is not made out for the reasons stated at paragraphs

[227]We find this complaint is not made out for the reasons stated at paragraphs

[228]We find this complaint is not made out for the reasons stated at paragraphs

[229]We find this complaint is not made out for the reasons stated at paragraphs

[230]We find this complaint is not made out for the reasons stated at paragraphs

[231]We find this complaint is not made out for the reasons stated at paragraphs

[232]We find this complaint is not made out for the reasons stated at paragraphs

[233]We find this complaint is not made out for the reasons stated at paragraphs

[234]We find this complaint is not made out for the reasons stated at paragraphs

[235]We find this complaint is not made out for the reasons stated at paragraphs

[236]We find this complaint is not made out for the reasons stated at paragraphs

[237]We find this complaint is not made out for the reasons stated at paragraphs HARASSMENT RELATED TO SEX

[238]The acts relied on in support of the claim of direct sex discrimination are also relied on by the Claimant to support the claim of harassment related to sex. Our findings on these, as they relate to harassment related to sex, are set out below. May 2023 (complaint 1).

[239]We find this complaint is not made out for the reasons stated at paragraphs of pay of £571 between 9 September and 20 October 2022

[240]We find this complaint is not made out for the reasons stated at paragraphs

[241]We find this complaint is not made out for the reasons stated at paragraphs

[242]We find this complaint is not made out for the reasons stated at paragraphs

[243]We find this complaint is not made out for the reasons stated at paragraphs

[244]We find this complaint is not made out for the reasons stated at paragraphs

[245]We find this complaint is not made out for the reasons stated at paragraphs

[246]We find this complaint is not made out for the reasons stated at paragraphs

[247]We find this complaint is not made out for the reasons stated at paragraphs

[248]We find this complaint is not made out for the reasons stated at paragraphs

[249]We find this complaint is not made out for the reasons stated at paragraphs

[250]We find this complaint is not made out for the reasons stated at paragraphs

[251]We find this complaint is not made out for the reasons stated at paragraphs

[252]We find this complaint is not made out for the reasons stated at paragraphs DIRECT AGE DISCRIMINATION

[253]We find this complaint is not made out for the reasons stated at paragraphs 194 and 218 to 221 above. HARASSMENT RELATED TO AGE

[254]The act relied on in support of the claim for direct age discrimination is also relied on by the Claimant to support the claim of harassment related to age. Our conclusion on this is that we find this complaint is not made out for the reasons stated at paragraphs 253 above. CONCLUSION

[255]Having carefully considered the Claimant’s allegations and the Respondent’s response, we find none of the allegations are made out. Accordingly, the claim is dismissed. Employment Judge Tueje 10th November 2025 APPENDIX Below are the complaints and list of issues as set out in the case management order dated 13th February 2025. 59. The following complaints were identified:59.1 Complaint 1: That between September 2022 and 17 May 2023 JH failed to engage with the claimant (further particulars paragraph A.2). The claimant alleges that this treatment was direct sex discrimination / harassment and direct disability discrimination / harassment.

59.2 Complaint 2: Between September 2022 and 23 October 2023 the failure of payroll to provide correct calculations (further particulars paragraph A.2). The claimant confirmed that the errors were the same as those that had comprised her unlawful deduction of wages complaint. Upon review, I have allocated those matters arising on or around the termination of the claimant’s contract to complaint 2 and those matters arising during the claimant’s employment to complaint 5. Therefore the treatment that the claimant is relying on is the:

(a) non-payment of pay of £571 between 9 September and 20 October 2022; (c) non-payment of 1 month’s pay of £2643 between 19 October 2022 and 16 November 2022; (d) arrears in annual leave of 44 days of £5847 which should have been paid at the latest in September 2022, on termination of her contract; and / or (e) underpayment of PILON, having been paid only 6 weeks instead of 12 weeks and net instead of gross, of £6442 on October 2022. The claimant alleges that this treatment was direct sex discrimination / harassment and direct disability discrimination / harassment.

59.3 Complaint 3: That on 15 September 2023 Mr Brown asked the claimant to approve document EPF68, when it had been incorrectly completed (further particulars paragraph A.3). The claimant alleges that this treatment was direct sex discrimination / harassment and direct disability discrimination / harassment.

59.4 Complaint 4: That on 23 September 2022 Ms Witts (Payroll Manager) became abusive and quite aggressive towards the claimant stating ‘I paid you too much and in October payslip will deduct £467’ (further particulars paragraph B5 as amended by list of issues paragraph 1.3.4). The claimant alleges that this treatment was direct sex discrimination and / or harassment and direct disability discrimination and / or harassment.

59.5 Complaint 5: That for more than a year up to 20 October 2022 the respondent stopped paying correct wages (further particulars paragraph B7). During the hearing the claimant stated that the period was between 9 September 2022 and 20 October 2022, however upon review of the unlawful deduction of wages complaint, the incorrect payments arising during the claimant’s employment was for a period of a year. Since there was a real possibility that the claimant had got confused, I have reverted to the more general description of this complaint, and identified the following incorrect payments: (a) underpayment of annual salary of £2643.13 from April 2022 to

(b) non-payment of 1 month’s sick pay of £4625 between April and May 2022;

(d) non-payment of pay of £571 between 9 September and 20 October 2022, having been signed off sick up to 20 October 2022; and

(e) underpayment of full sick pay of £7268 up to 20 October 2022. The claimant alleges that this treatment was direct sex discrimination / harassment, direct disability discrimination / harassment and discrimination arising out of disability.

59.6 Complaint 6: That in January 2022 Ms Mansfield stated in an occupational health referral ‘”in respect of travel – how far could Marcela travel – for how long in time or distance, what is that is stopping this?” “How is Marcela mobility – she said she cannot walk too far or climb stairs?” “How many miles can she drive and how far she can walk?” “How long can Marcela sit and type at laptop – any adjustments help?” “I tried to offer a talk/type aid, but she has declined”’ (further particulars paragraph C1 as amended by the list of issues paragraph 1.3.5). The claimant alleges that this treatment was direct sex discrimination / harassment and direct disability discrimination / harassment and discrimination arising out of disability.

59.7 Complaint 7: That on 17 May 2023 at a meeting with JH and Mr Brown, the Claimant was informed that the respondent had not applied the pay policy salary due to the Claimant’s sickness (further particulars paragraph F2). The claimant alleges that this treatment was direct sex discrimination / harassment and direct disability discrimination / harassment and discrimination arising out of disability. The Issues 73. The issues for the Tribunal to decide are as follows: [The allegations in italics are those which are subject to a deposit order].

[1]Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 22 May 2023 may not have been brought in time.

1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:

(a) Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

(b) If not, was there conduct extending over a period?

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

(d) If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: (a) Why were the complaints not made to the Tribunal in time? (b) In any event, is it just and equitable in all the circumstances to extend time?

[2]Disability2.1 The claimant claims that she has the following conditions (impairments)1:

(a) Covid 19 / Long COVID

(b) Lung and Respiratory problems

(d) Diabetes type 2

(e) Kidney problems

(f) Osteoarthritis of knees and hands

(g) Carpal Tunnel Syndrome

(h) Left Rotator cuff Arthropathy

(i) Arthritis

(j) Cervical and Lumbar Spondylosis

(k) Hypothyroidism

(l) Cardio-circulatory, Arrythmia

2.2 The respondent accepts that the claimant is disabled under section 6 of the Equality Act 2010 in relation to the following conditions: (a) Asthma from 23 September 2019 onwards; (b) Covid / long covid from 23 November 2021 onwards; (c) Diabetes type II from February 2021 onwards; (d) Arthritis from January 2021 onwards.

2.3 Did the claimant additionally have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide:2.3.1 Did they have a physical or mental impairment in relation to one or more of the following conditions: (a) Lung and Respiratory problems (b) Kidney problems (c) Osteoarthritis of knees and / or hands, (d) Carpal Tunnel Syndrome (e) Left Rotator cuff Arthropathy (f) Cervical and Lumbar Spondylosis (g) Hypothyroidism (h) Cardio-circulatory, Arrythmia 1 Obtained from the claimant’s second list of issues dated 27 January 2025

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

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

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

2.3.5 Were the effects of the impairment long-term? The Tribunal will decide: (a) did they last at least 12 months, or were they likely to last at least 12 months? (b) if not, were they likely to recur?

[3]Direct disability discrimination (Equality Act 2010 section 13)3.1 Did the respondent do the following things:3.1.1 [Between September 2022 and 17 May 2023 JH failed to engage with the claimant (complaint 1)].

3.1.2 [Between September 2022 and 23 October 2023 the failure of payroll to provide correct calculations, in relation to the following: (complaint 2)

3.1.3 [On 15 September 2023 Mr Brown asked the claimant to approve document EPF68, when it had been incorrectly completed (complaint 3).]

3.1.4 That on 23 September 2022 Ms Witts (Payroll Manager) became abusive and quite aggressive towards the claimant stating ‘I paid you too much and in October payslip will deduct £467’ (complaint 4).

3.1.5 That for more than a year up to 20 October 2022 the respondent R stopped paying correct wages, as follows: (complaint 5) to September 2022;

3.1.6 In January 2022 Ms Mansfield stated in an occupational health referral ‘”in respect of travel – how far could Marcela travel – for how long in time or distance, what is that is stopping this?” “How is Marcela mobility – she said she cannot walk too far or climb stairs?” “How many miles can she drive and how far she can walk?” “How long can Marcela sit and type at laptop – any adjustments help?” “I tried to offer a talk/type aid, but she has declined”’ (complaint 6).

3.1.7 [On 17 May 2023 at a meeting with JH and Mr Brown, the Claimant was informed that the respondent had not applied the pay policy salary due to the Claimant’s sickness (complaint 7)].

(a) Non-payment of pay of £571 between 9 September and 20 October 2022; (c) non-payment of 1 month’s pay of £2643 between 19 October 2022 and 16 November 2022; (d) arrears in annual leave of 44 days of £5847 which should have been paid at the latest in September 2022, on termination of her contract; and (e) underpayment of PILON, having been paid only 6 weeks instead of 12 weeks and net instead of gross, of £6442 on October 2022]

(b) non-payment of 1 month’s sick pay of £4625 between April and May 2022; October 2022, having been signed off sick up to 20 October 2022.

3.2 Was that less favourable treatment? [The claimant is relying on hypothetical comparator since she has not named anyone in particular who they say was treated better than they were].

3.3 If so, was it because of disability?

3.4 Did the respondent’s treatment amount to a detriment?2

[4]Harassment related to disability (Equality Act 2010 section 26)4.1 Did the respondent do the following things: (a) As listed in paragraph 3.1 above.

4.2 If so, was that unwanted conduct?

4.3 Did it relate to disability? 2 It was confirmed at the final hearing that this had been included in the list of issues erroneously

[5]Discrimination arising from disability (Equality Act 2010 section 15)5.1 Did the respondent treat the claimant unfavourably by:5.1.1 That for more than a year up to 20 October 2022 the respondent R stopped paying correct wages (complaint 5) as follows: 2022 to September 2022; (b) non-payment of 1 month’s sick pay of £4625 between April and May 2022; 20 October 2022, having been signed off sick up to 20 October 2022; and 2022.

5.1.2 In January 2022 Ms Mansfield stated in an occupational health referral ‘”in respect of travel – how far could Marcela travel – for how long in time or distance, what is that is stopping this?” “How is Marcela mobility – she said she cannot walk too far or climb stairs?” “How many miles can she drive and how far she can walk?” “How long can Marcela sit and type at laptop – any adjustments help?” “I tried to offer a talk/type aid, but she has declined”’ (complaint 6).

5.1.3 On 17 May 2023 at a meeting with JH and Mr Brown, the Claimant was informed that the respondent had not applied the pay policy salary due to the Claimant’s sickness (complaint 7).

5.2 Did the following things arise in consequence of the claimant’s disability: 5.2.1 the claimant’s sickness absence

5.3 Was the unfavourable treatment because of any of those things?

5.4 Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims were: 5.4.1 [respondent to provide details]

5.5 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?

[6]Direct sex discrimination (Equality Act 2010 section 13)6.1 Did the respondent do the following things:6.1.1 [Between September 2022 and 17 May 2023 JH failed to engage with the claimant (complaint 1).]

6.1.2 [Between September 2022 and 23 October 2023 the failure of payroll to provide correct calculations, in relation to the following: (complaint 2)

6.1.3 [On 15 September 2023 Mr Brown asked the claimant to approve document EPF68, when it had been incorrectly completed (complaint 3).]

6.1.4 That on 23 September 2022 Ms Witts (Payroll Manager) became abusive and quite aggressive towards the claimant stating ‘I paid you too much and in October payslip will deduct £467’ (complaint 4).

6.1.5 [That for more than a year up to 20 October 2022 the respondent R stopped paying correct wages as follows: (complaint 5) to September 2022;

6.1.6 [On 17 May 2023 at a meeting with JH and Mr Brown, the Claimant was informed that the respondent had not applied the pay policy salary due to the Claimant’s sickness (complaint 7)].

(b) non-payment of 1 month’s sick pay of £4625 between April and May 2022; October 2022, having been signed off sick up to 20 October 2022. ]

6.2 Was that less favourable treatment? [The claimant is relying on hypothetical comparator since she has not named anyone in particular who they say was treated better than they were].

6.3 If so, was it because of sex?

6.4 Did the respondent’s treatment amount to a detriment? 3

[7]Harassment related to sex (Equality Act 2010 section 26)7.1 Did the respondent do the following things: 7.1.1 As listed in paragraph 6.1 above.

7.2 If so, was that unwanted conduct?

7.3 Did it relate to sex?

[8]Direct age discrimination (Equality Act 2010 section 13)8.1 Did the respondent do the following things: 8.1.1 [In January 2022 Ms Mansfield stated in an occupational health referral ‘”in respect of travel – how far could Marcela travel – for how long in time or distance, what is that is stopping this?” “How is Marcela mobility – she said she cannot walk too far or climb stairs?” “How many miles can she drive and how far she can walk?” “How long can Marcela sit and type at laptop – any adjustments help?” “I tried to offer a talk/type aid, but she has declined”’ (complaint 6)].

8.2 Was that less favourable treatment? [The claimant is relying on hypothetical comparator since she has not named anyone in particular who they say was treated better than they were].

8.3 If so, was it because of age?

8.4 Did the respondent’s treatment amount to a detriment? 4 3 It was confirmed at the final hearing that this had been included in the list of issues erroneously 4 It was confirmed at the final hearing that this had been included in the list of issues erroneously

8.5 Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims were: 8.5.1 [Respondent to identify]

[9]Harassment related to age (Equality Act 2010 section 26)9.1 Did the respondent do the following things: 9.1.1 As listed in paragraph 8.1 above.

9.2 If so, was that unwanted conduct?

9.3 Did it relate to age?