Mrs J Marsden v Department of Work and Pensions: 2400424/2022

EMPLOYMENT TRIBUNALS

Case No 2400424/2022

Between

Mrs J MarsdenClaimant

Department of Work and PensionsRespondent

Before

Employment Judge KM Ross

In person for claimant

Mr Wilkinson (instructed by counsel) for respondent

Date 21 March 2025

JUDGMENT

[1]The claimant’s claim for a failure to make reasonable adjustments is not well founded and fails.

[2]The claimant’s claim for victimisation is not well founded and fails.

[3]The claimant’s claim for discrimination arising from disability is not well founded and fails. JUDGMENT having been sent to the parties and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]The claimant continues to be employed by the respondent. She is a long serving employee and a disabled person by reason of anxiety and depression. She previously brought a claim to the Employment Tribunal case number 2405365/18 for discrimination arising from disability and a failure to make reasonable adjustments. The claims were heard in September 2019 and succeeded. There was a Remedy Hearing and Judgment in September 2020.

[2]This claim relates to the previous case because it is about how the claimant perceives the way the respondent has dealt with matters arising from and related to that claim. The claimant stated in her claim form for this case “I had an upheld Employment Tribunal and Remedy Hearing in 2020, however my employer is disputing the remedy and are saying they cannot correct the documents”.

[3]The Respondent disputed the claim and stated they had met the claimant on a number of occasions for meaningful discussions after the Remedy Judgment and that there was no recommendation or order by the Tribunal to correct the historical The claims in this case.

[4]The failure to make reasonable adjustments pursuant to s20-21 Equality Act 2020. The claimant alleged the respondent failed to investigate and correct the draft briefing historical background document. The Claimant says the latest this should have been resolved was between one and six months of the Respondent receiving the Tribunal’s remedy decision in the previous case. The other adjustment which the claimant says the respondent failed to do was to resolve any issues which flow from the correction of the historical background document.

[5]Unfavourable treatment arising because of discrimination arising because of something in consequence of disability pursuant to s15 Equality Act 2010. The unfavourable treatment relied upon by the claimant was the respondent, in the period from 13 October 2020 to 12 October 2021, not engaging in meaningful discussions or holding meetings in good faith to resolve the issue relating to the document titled “draft briefing: historical background” following the original Tribunal judgment dated 17th October 2019.

[6]Victimisation pursuant to s27 Equality Act 2010.The detrimental treatment was an e-mail and attachment sent to the claimant by Mrs Saunders, who was employed by the respondent in their HR department, on 16 August 2021 which the claimant said stated “the Employment Tribunal had no jurisdiction to require the Respondent to correct the historical background document and there was no obligation for it to do so, and informing her that the Respondent had not breached any data protection requirement” Summary of this case and the previous case

[7]The previous case was heard by Judge Slater and members in September 2019. I will refer to it as the Slater Tribunal. The claim had a lengthy backstory. The Tribunal made findings of fact going back to 2002.That case as stated by Judge Slater in her summary arose out of “the claimant’s attempts to get the respondent to engage and meet with her to discuss issues relating to a draft historical briefing document prepared in 2011.” Judge Slater found the document contained inaccuracies. She found the respondent refused to engage with the claimant on the basis that all matters had been previously investigated.

[8]In this case the claimant alleged the respondent had not engaged in meaningful discussions or good faith to correct the historical document. The respondent denied the claims and stated it had engaged with the claimant in meaningful discussion about the historical background document after the Remedy Judgment.

[9]It was agreed the relevant time period for this claim was 13 October 2020- 12 October 2021. Procedural background.

[10]There were a number of preliminary hearings in this case before Judge Warren, Judge Dunlop, Judge Humble and Judge Leach. At a hearing before Judge Humble, some of the claimant’s claims were made the subject of a deposit order on the basis they had little reasonable prospects of success. Those claims were struck out because the claimant did not pay the deposit.

[11]By March 2024 there was an agreed list of issues which was confirmed with the parties at the outset of this hearing and is attached as an Annex to this judgment. Reasonable adjustments for the claimant at this hearing

[12]The claimant supplied a document dated 12 May 2023 to this Tribunal which stated she had been diagnosed with autism. The claimant’s disability was not relevant to the legal issues in this claim, but the Tribunal took it into account when making adjustments to ensure the hearing was fair. This was discussed at the outset of the hearing when we agreed there would be regular breaks, that the claimant could request additional breaks at any time and that counsel for the respondent would have regard to the Equal Treatment Bench Book (section on autism) when cross examining the claimant. He would use clear open questions, avoid double negatives and idiomatic language. In addition the claimant was given time when there were any decisions to be made about how to proceed. Witnesses.

[13]I heard from the claimant. For the respondent I heard from David Harrison, Joanne Lanham, Rosanna Saunders and Rose Baker. I read a statement from Nicola Hanns but she did not attend, as she was unwell, so I attached limited weight to it.

[14]At the request of the respondent, Ms Lanham attended remotely due to caring responsibilities. Documents

[15]There was a file of witness statements and an agreed file of documents (1204 pages). (Paper and electronic copies). At the start of the hearing the claimant wanted to add further documents (38 pages). It was not clear exactly how these documents were relevant but nevertheless I permitted them to be included so there was a 3rd bundle entitled “claimant’s documents.”. (Electronic only.)

ISSUES

[16]The Issues were agreed between the parties and are attached to this Judgment as Appendix A.

[17]To avoid any confusion for the parties, especially the claimant, when I have considered and referred to the List of Issues in this judgment, I have used the numbering as recorded in the List of Issues document at the Annex attached to this judgement. A copy of the List of Issues is also in the Bundle of documents at pages 1200-1204.

FACTS

[18]The claimant previously brought a claim in the Employment Tribunal. It was heard before Employment Judge Slater and members on the 23rd to 27 September 2019.

[19]The Slater Tribunal found that the claimant’s claim for discrimination arising from disability and a claim for failure to make reasonable adjustments was well founded.

[20]It is important to be clear exactly what the Slater judgment stated. There seems to have been a misunderstanding particularly on the part of the claimant about the outcome of that case.

[21]The Slater Judgment for discrimination arising from disability pursuant to s15 Equality Act was “the respondent treated the claimant unfavourably by treating an issue raised by the claimant (i.e. that a document titled draft briefing historical background prepared in 2011 should be corrected in light the definitive chronological summary final version dated 14 January 2014 agreed with the respondent in 2014 “the document issue”) as concluded and refusing to engage in substantive discussion about it including at a face-to-face meeting. See the Slater Judgment found in the main bundle at page 12, numbered paragraph 3 and also paragraph 140 on p 34. The Slater Judgment clearly stated it was the fact of treating the issue as concluded and refusing to engage in substantive discussion including at a face to face meeting which was discriminatory.

[22]The Slater Tribunal found that the failure to make reasonable adjustments was “by failing to hold a face-to-face meeting”. Paragraph 10 , page 13 and paragraph 52 page 37 :“We conclude in the circumstances holding a face to face meeting between the claimant and HR was a reasonable step for the respondent to have to take to avoid the alleged disadvantage”.

[23]It should be obvious that the Tribunal was looking back at things that had happened before the hearing in September 2019.

[24]There was a remedy hearing in September 2020 where the claimant was awarded substantial compensation.

[25]It is important to be clear that the Slater tribunal did not make any recommendation pursuant to s124(2)(c ) Equality Act 2010 in the Judgment. It is also important to be clear the Slater tribunal did not state in the Judgment that the respondent failed to make a reasonable adjustment by failing to correct the historical briefing

[26]All witnesses for the respondent to this Tribunal confirmed that they accepted the Judgments and findings of the Slater tribunal.

[27]Following the Slater tribunal remedy Judgment the respondent made strenuous efforts in particular through Ms Joanne Lanham to meet with the claimant and resolve the issue of the historical background document.

[28]Ms Lanham met with the claimant on five separate occasions. I found Ms Lanham to be a conscientious truthful and fair witness. I find she tried very hard to resolve the issue and that she approached the matter as somebody who was entirely independent and new.

[29]I find Mrs Saunders to be a conscientious intelligent and thoughtful witness who also approached the matter independently and tried hard to be constructive to progress the matter.

[30]It is difficult to understand why the claimant was not satisfied with the efforts made by the respondent through Ms Lenham and Mrs Saunders.

[31]The claimant appeared to believe that the Slater tribunal had made a finding that DWP must correct the historical briefing document so that it reflected entirely her perception of what was true and agree that with her.

[32]It is easy to assume from a first reading of the Slater judgement and the claim form in this case that the historical background briefing document from 2011 which I will refer to as HBD might be a document capable of quickly being corrected.

[33]However that turned out not to be the case. The original HBD is at page 1170-1173 (4 pages). Perfectly reasonably Ms Lanham asked the claimant to provide what she said wanted to be the HBD.

[34]The claimant provided a draft version of the HBD which she wanted to be the record in February 2021 it is eight pages in length p873 -880, double the length of the original document.

[35]THE HBD includes matters which go back almost 20 years.

[36]The claimant’s version of the HBD dated Feb 2021 is not a simple factual document which, for example simply uses the facts found by the Slater Tribunal to provide a corrected version.

[37]Instead it contains many new factual assertions, and sweeping comments .

[38]For example, both documents refer to a personal injury claim which the claimant (JM) lodged in 2004. See original HBD at p110 paragraph 6 and p874 , third paragraph from the end of the page. However the new version of the HBD includes a section which states” JM ‘s personal injury claim, because she had always been advised that the Equal Opportunities complaint had not been upheld was difficult to progress not least because of the length of time the DWP allowed the investigation to continue”. This is new information and new allegation about delay and suggests the reason why a legal claim in 2004 did not progress was partly due to delay by DWP.

[39]There is a section at page 879 which includes the claimant’s opinion about a whole variety of matters in the document which are wide ranging and imprecise. The allegations made by the claimant in that section start “My conclusions on the corrections are HRBP(Human Resources Business Partner) have interfered in the decision-making process. Decisions have gone missing when they support my case. HRBP have stated that they have seen solicitors letters yet when asked for a copy via a subject access request this document has not been provided. HRBP have deliberately left out the relevant details to support their case. HRBP have claimed that they have sent letters to me, but I have not seen the letters. Due process was not followed regarding investigations, both grievances and Equal Opportunities complaints. Incorrect information was knowingly given to DWP solicitors from as early as 2008. Incorrect information was knowingly given to JM as early as 2003. Management have been allowed to raise harassment claims against JM without following the grievance process”.

[40]Another example is at page 875 of the new version of the document where the claimant refers to a career break between 31 July 2006 to 1 January 2009. She states she was allocated to Salford Job Centre and that her new line manager at Salford Job Centre was NM (Nick Mellor). She makes allegations that he refused to engage with her and raised a grievance against her which she states” DWP have been unable to find.” There is no reference to Nick Mellor in the original HBD.

[41]The claimant was asked about these new references in cross examination. The claimant struggled to accept that these are matters which the respondent could not simply agree. I find the matters required clarification and extensive further investigation. The claimant also seemed to struggle to understand that it was difficult to investigate matters which had occurred a long time ago.

[42]I find Ms Lanham tried hard to find a solution. It had become clear as the meetings with the claimant progressed that it was not practicable, proportionate or possible to come to an agreed version of the HBD which the claimant wanted because it was going to require substantial investigation and due to the length of time which had passed, that relevant employees had left the respondent and documents no longer existed ,it was simply not practicable.

[43]In cross examination the claimant appeared to suggest that she did not mind if Ms Lanham suggested some matters were not included in the revised HBD. This is not supported by the contemporaneous documentation. The claimant did not suggest anywhere at the time that she was happy to delete matters from her draft HBD. Neither did the claimant ever suggest simply using the historic facts found by the Tribunal in relation to the HBD.

[44]The claimant’s union representative became involved. A solution was suggested which was the original HBD be deleted from the claimant’s file and records with the exception of the copy that must be kept with the employment tribunal bundle as a record of legal proceedings. p657,658, 673-4. 45. 0n 8 September 2021 Mrs Saunders from HR(p656-7) confirmed that no version of the previous historical document would be stored on the claimant’s personnel file. She confirmed the old historical version would be held only on the Tribunal file, which would be sent for storage as all bundles from Tribunal cases are, but the Tribunal judgement would also be stored with it and that made it clear where the Department was found wanting .

[46]She also confirmed the DWP was still willing to draw up a version the claimant was content with and that could be stored alongside the bundle if that is what the claimant wanted.

[47]For reasons it is hard to understand the claimant did not accept this. Instead, she wrote to say “it has been Jo’s contention that she is unable to correct the draft historical briefing document because it is not in her remit.” P655.This was a misunderstanding on the part of the claimant.

[48]Ms Lenham immediately clarified p654-5 that she had not suggest that she was unable to correct the draft historical document- “on the contrary that was the action I approached you to take forward.” She reminded the claimant “I have said it would not be possible for me to investigate the details in the document due to the lapse of time involved”. She offered again to store a version that captured what the claimant wished to say. There was also a suggestion that instead they could reach an agreement on the status of the HBD.

[49]The claimant was insistent that the DWP needed to agree with her the contents of the document. On 10th September she stated page 654 “the DWP need to agree with me the corrections to the draft briefing historical background document “

[50]Ms Lanham tried again to clarify the position with the claimant on 12 October 2021.p790.Her understanding was the claimant had decided not to pursue the option to agree a statement that the previous versions will never be relied upon again and she asked the claimant again for a version of the document that she would be content for DWP to hold on record.

[51]The claimant replied the next day reiterating she wished “The historical briefing document to be corrected by joint review.” p789-90.

[52]Accordingly, the parties had reached a stalemate. The claimant seemed to believe Ms Lenham’s remit had changed. I find it had not. Ms Lenham was trying to resolve the problem of the inaccuracy of the original HBD which had been trying to do from when she first contacted the claimant p.486.

[53]The claim was presented on 24 Jan 2022. The period of time relevant to these proceedings is 13 Oct 2020 – 12 Oct 2021. Thus what happened next is not directly relevant.

[54]However for the sake of completeness I note Ms Lenham continued to try to engage with the claimant. She wrote on a number of occasions offering to include the claimant’s version of the documents sent to her on 26 February 2021 page 873-9 on file.

[55]On 28th of July 2022, see p776-7, she asked again for a copy of the document the claimant wish to have retained so it could be stored with the document bundle from the Tribunal claim and she indicated that given the length of time that elapsed she could not continue to correspond indefinitely.

[56]The claimant responded with a lengthy email saying she considered Ms Lenham’s remit had changed. p775-6

The Law

[57]The relevant law is section 27 Equality Act 2010 in relation to victimisation, section 15 Equality Act 2010 for the unfavourable treatment claim and section 20 to 21 Equality Act 2010 for the reasonable adjustments claim.

[58]The burden of proof provisions are relevant, Section 136. Equality Act.

[59]I reminded myself of the principles in Igen Limited & others v Wong

[2005] ICR 931

CA; Anya v The University of Oxford

[2001] IRLR 377

; Shamoon v The Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

HL; Barton v Investec Securities

[2003] ICR 1205

; Madarassy v Nomura International PLC

[2007] ICR 867

; Laing v Manchester City Council

[2006] ICR 1519

; and Nagarajan v London Regional Transport

[1999] ICR 877

HL and Chief Constable of Greater Manchester v Bailey

2017 EWCA Civ 425

[60]In the reasonable adjustments claim the Tribunal had regard to the principles in Environment Agency –v- Rowan

2008 ICR 218

EAT, Project Management –v- Latif

2007 IRLR 579

and Smith –v- Churchills Stair Lifts Plc

2006 IRLR 41

CA.

[61]In the Section 15 claim the Tribunal had regard to Pnaiser –v- NHS England and Another

2016 IRLR 170

EAT.

[62]In the victimisation claim I reminded myself of the well-known cases of Chief Constable of West Yorkshire Police v Khan

2001 ICR 1065

, HL and Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

[63]The Tribunal also had regard to the EHRC Code of Practice

[64]I had regard to the cases referred to by Mr Wilkinson in his helpful skeleton argument. Applying the Law to the Facts and considering the issues in the Claims.

[65]The first Issue was Time Limits, but I have left that to the end of the Judgment.

[66]The second Issue was disability. There is no dispute in this case that the claimant was a disabled person by reason of depression and anxiety and the respondent knew she was disabled for this reason. The claimant does not rely on PTSD or Autism as a disability in this claim.

[67]The next issue is issue 3: Failure to make reasonable adjustments. I will return to issue 3 once I have considered issue 4, Victimisation.

[68]I deal next with issue with Victimisation (section 27 EA 2010)

[69]I turn to the first issue which was listed as Issue4.1 in the List of Issues. What are the protected Acts? The protected acts relied on by the Claimant are:4.1.1 the Employment Tribunal proceedings brought under case number 2405365/2018.

4.1.2 the grievances dated 14th October 2020,( page 346-351), 5th May 2021(page 612) and 7th May 2021.(page 614)

4.2 Was the Claimant subjected to the following detrimental treatment: 4.2.1 On 16 August 2021, Rosanna Saunders (acting on legal advice) informing the Claimant that the Employment Tribunal had no jurisdiction to require the Respondent to correct the historical background document and there was no obligation for it to do so, and informing her that the Respondent had no breached any data protection requirement.

4.3 If so, was the Claimant subject to such detrimental treatment because she had done one or more protected acts?

[70]There is no dispute by the respondent that the previous ET claim and the grievances are protected acts.

[71]The next question is: did the claimant suffer detrimental treatment by the respondent as set out at 4.2.1 above. I must therefore consider whether the claimant suffered any detrimental treatment by Rosanna Saunders in the email and attachment sent by her on 16 August 2021 page 666-8.

[72]I reminded myself of the long-established case law which tells me that when considering whether there has been detrimental treatment I must look at it from the point of view of the claimant. However I must also consider whether the claimant’s perception is objectively reasonable. This established range of cases most recently in Warburton v Chief Constable of Northamptonshire Police 2022 EAT but previously set out in Shamoon v Chief Constable of the Royal Ulster Constabulary and Chief Constable of West Yorkshire Police v Khan.

[73]I find there was absolutely no detrimental treatment. In that email and attachment.

[74]I find that when Rosanna Saunders stated (p667) in her email attachment that “ However the Employment Tribunal have no jurisdiction to instruct DWP to amend said document and there is no obligation for us to do so” her statement was completely correct. A tribunal has no power to order a respondent to correct a document. The tribunal has the power to make recommendations, pursuant to s124(2)(c) Equality Act 2010 but the Slater tribunal did not make a recommendation that the respondent should correct the historical background document. In addition, Mrs Saunders also explained “although Joanne Lanham is attempting to work through this with you to capture a version you are content with.”

[75]Mrs Saunders also stated: “There is no issue in relation to data protection in relation to the historical document.” She went on to clarify this statement explaining “the document provided will only be held as part of the Employment Tribunal Bundle. “p667

[76]The claimant has repeatedly seemed to suggest that the fact the respondent was holding a copy of the original HBD within the Employment Tribunal Bundle of documents from the Slater Tribunal claim, even though it was accompanied by the Slater Tribunal Judgement and Remedy Judgement was somehow a breach of data protection laws or rules. The claimant has not produced any clear evidence as to why that is the case. The claimant agrees she is not an expert in data protection. I find Mrs Saunders had taken advice from people working in the area of data protection at the relevant time. Accordingly, I find her statement was a reasonable belief honestly held.

[77]I find it is not objectively reasonable for the claimant to have suffered a detriment when being informed of something which is factually correct because from an objective point of view her perception is not reasonable.

[78]The claim for victimisation therefore fails at this stage.

[79]For the sake of completeness, I will deal with causation which is issue 4.3. Was the Claimant subject to such detrimental treatment because she had done one or more protected acts?

[80]There was no clear evidence of causation. When asked in cross examination, the claimant was unable to explain at all why the grievances were connected to the alleged detriment.

[81]I found Mrs Saunders to be a clear conscientious and genuine witness making concessions where appropriate. For example, she accepted that she might have seen to the grievances although could not recall doing so.

[82]It is absolutely clear that the reason Mrs Saunders made the statement that she did was not because of any grievances raised by the claimant and was not because of the claim to the Slater Tribunal, it was because she was trying hard in correspondence to reply to the issues raised by the claimant in a lengthy email of 16 June 2021. Therefore, the victimisation claims for this reason too.

[83]It was concerning in this case that the claimant was pursuing the victimisation claim at all. At a previous hearing Judge Humble had made a deposit order in relation to almost all of the claimant victimisation claim. P157-72. The claimant did not pay the deposit. Those claims were therefore automatically struck out.

[84]The claimant said to the tribunal that she believed the entire victimisation claim had been struck out. The Tribunal showed the claimant Judge Humble’s decision. She was asked to consider the position overnight as to whether she wanted to pursue the victimisation claim which remained in the List of Issues, especially as she had considered it had been struck out. The following day the claimant said she wanted to keep the victimisation claim in.

[85]However when cross examined the claimant was unable to explain why she thought the grievances she relied on as protected acts were connected to the alleged detriment and stated that “ I did not write that.”

[86]Although the claimant is a litigant in person who has an autism diagnosis and suffers anxiety and depression, she is an intelligent woman who has previously represented herself in Tribunal.

[87]It is a serious matter to bring a claim for victimisation in the ET particularly against a named individual and it is concerning the claimant was so vague about the key parts of this allegation.

[88]Unfavourable treatment because of something arising in consequence of a Disability (section 15 EA 2010) This is found at Issue 5.

[89]The questions are:5.1 Did the Respondent treat the Claimant unfavourably because of something arising in consequence of the Claimant’s disability contrary to s. 15 of Equality Act 2010?

5.2 The Claimant relies on the following alleged acts/omissions as unfavourable treatment: 5.2.1 The Respondent, in the period from 13 October 2020 to 12 October 2021, not engaging in meaningful discussions or holding meetings in good faith to resolve the issue relating to the document titled “draft briefing: historical background” following the original Tribunal judgment dated 17th October 2019.

5.3 Did the above act/omission occur as alleged or at all?

5.4 Did the treatment arise in consequence of the Claimant’s disability, namely: 5.4.1 The Claimant’s persistence in raising matters related to the correction of the historical background document because, unless she resolved the matter, she was not going to get better.

5.5 Has the Claimant proven facts from which the Tribunal could conclude that the unfavourable treatment was because of that thing?

5.6 If so, can the Respondent show that there was no unfavourable treatment because of something arising in consequence of the Claimant’s disability?

5.7 If not, can the Respondent show that the treatment was a proportionate means of achieving a legitimate aim? The legitimate aims relied upon are as follows:5.7.1 The ability to treat historic employment issues dating back to 2002 as

5.7.2 An ability to limit management and HR time being spent on historic issues

5.7.3 Ensuring that employees and members of management are able to move on from perceived historical issues which cannot be re-investigated;

5.7.4 Requiring employees to focus their attention on undertaking their duties in order to allow the Respondent to properly provide the services and work it is required to do as a public sector organisation; and

5.7.5 An entitlement to expect finality to issues raised by employees relating to forward.

[90]I find the claimant did not suffer unfavourable treatment. I find the respondent through Ms Lenham in particular, engaged in meaningful discussions and held meetings in good faith to try to resolve the issue relating to the document entitled draft briefing historical background following the original Tribunal judgement.

[91]The claimant agreed when cross examined that although there was some communication with Mr Harrison in November 2020, which is within the relevant time frame for this case, she presented a grievance against Mr Harrison on 16.10.20 p346-351 and that therefore he had no further involvement and all the relevant meetings were with Ms Lanham.

[92]Ms Lanham was a clear conscientious and careful witness. There is no dispute that she met with the claimant on 5 separate occasions: 27 January 2021, p518- 20, 24 February 2021,531-5, 24 March 2021,1174-6, 1 July 2021, p1192-1195, and 29 July 2021, p1082-1085. These were lengthy minuted meetings where Ms Lanham on behalf of the respondent carefully and conscientiously tried to resolve the issue. I find there was absolutely no fault on the part of Ms Lanham.

[93]She came to the matter independent and fresh. The claimant herself in cross examination agreed that Ms Lanham did not act in bad faith in any of these meetings. There is also extensive email correspondence between the parties which reflects Ms Lanham engaging conscientiously and in a fair and meaningful way.

[94]The process reached stalemate through no fault or want of trying by Ms Lanham. It became clear that the version of the HBD that the claimant wanted as an agreed record of both parties was not a simple factual document correcting the original HBD but was a very substantial extension of that document and much of it was highly subjective. It also related to matters which had happened considerably in the past -up to 20 years earlier.

[95]The claimant seems to labour under misapprehensions. Firstly, she seemed to believe that the respondent was legally obliged to correct the document as a result of the Slater Judgment. This is factually incorrect as I have explained already. The claimant’s belief is clear in an email where she stated “DWP asked a senior HR manager to implement the reasonable adjustment which was to meet with me listen to my concerns about the draft historical background document, correct the document and implement any issues that flow from the corrections….. Her remit does not seem to match with my understanding of the employment tribunal remedy judgement.” P612-3 email from the claimant of 4 May 2021.

[96]Secondly, she seems to consider it was reasonable that the respondent investigate matters which had happened up to 20 years earlier. She did not appear to accept that this was problematic in terms of historic documents missing and personnel having left, or memories faded.

[97]Ms Lenham made practical suggestions to resolve the matter -that the incorrect doc would not be on her record except in the Employment Tribunal bundle where stored with ET Judgment, the claimant could produce her own version and it would be stored with the ET bundle. She can also have her version stored on her record if that is what she wanted. She could have all earlier versions of the HBD deleted.

[98]None of this was acceptable to the claimant. In the summer of 2021, when her trade union representative became involved, she seemed close to accepting a solution, page 674. However, by 10 September 2024, the claimant agreed in cross examination that she did not accept the solution raised by her union but re iterated she wanted the respondent to “correct the draft historical briefing document …by looking at the evidence and any issues that flowed from that correction should be dealt with.” She went on to state she considered that was “an implementation of the ET Liability and Remedy Judgment.”

[99]I find the claimant’s allegation of 5.2.1 “The Respondent, in the period from 13 October 2020 to 12 October 2021, not engaging in meaningful discussions or holding meetings in good faith to resolve the issue relating to the document titled “draft briefing: historical background” following the original Tribunal judgment dated 17th October 2019” is factually incorrect.

[100]I now consider Issue 5.3 which is: did the act/omission occur. I find it did not occur. I find there was no unfavourable treatment because I find the respondent engaged in good faith with the claimant and in meaningful discussions with her through Ms Lenham in an attempt to resolve the historical background document. Accordingly, as the allegation is factually incorrect, it can not be an act of unfavourable treatment. The s15 claim fails at this point.

[101]However in case I am wrong about that I have gone on to consider the other issues. The next question is issue 5.4 Did the treatment arise in consequence of the Claimant’s disability, namely:5.4.1: The Claimant’s persistence in raising matters related to the correction of the historical background document because, unless she resolved the matter, she was not going to get better. The respondent did not dispute this.

[102]I considered the next issue: 5.5 Has the Claimant proven facts from which the Tribunal could conclude that the unfavourable treatment was because of that thing? The claimant has not adduced any evidence to show that the way the meetings were conducted was anything to do with the “something” arising in consequence of disability. Accordingly the s15 claim fails at this point too.

[103]I turn to the next issue 5.6 If so, can the Respondent show that there was no unfavourable treatment because of something arising in consequence of the Claimant’s disability? The respondent can for reasons I have already given above. The s15 claim again fails.

[104]I turn to issue 5.7 If not, can the Respondent show that the treatment was a proportionate means of achieving a legitimate aim? The legitimate aims relied upon are as follows: 105.5.7.1 The ability to treat historic employment issues dating back to 2002 as 106.

5.7.2 An ability to limit management and HR time being spent on historic issues 107.

5.7.3 Ensuring that employees and members of management are able to move on from perceived historical issues which cannot be re-investigated; 108.

5.7.5 An entitlement to expect finality to issues raised by employees relating to forward

[110]The claim did not reach this point but if it had, I am satisfied all of these were legitimate aims and proportionate. Ms Lenham engaged in 5 detailed meetings with the claimant and became involved in detailed correspondence with the claimant. The claimant raised many other matters and Ms Saunders also became involved. They tried their very best to resolve the HBD and offered reasonable solutions to the claimant which she chose not to accept.

[111]The s15 claim fails for all the above reasons. Failure to Make Reasonable Adjustments (section 20 EA 2010)

[112]I therefore turned to the final claim which was the failure to make reasonable adjustments. The issues were at Issue 3 of the List of documents.

[113]I now consider the first PCP . Did the following amount to a provision, criteria or practice (“PCP”): Issue 3.1.1 the failure, between 13 October 2020 to 12 October 2021 to correct information held on the Claimants record, specifically the historical

[114]I reminded myself of what a provision criteria or practice is by re-reading Ishola v Transport for London

2020 ICR 1204

, CA. In that case Lady Justice Simler reminds me that that the words ‘provision, criterion or practice’ are not to be narrowly construed or unjustifiably limited in their application, but notes it is significant that Parliament had chosen these words instead of ‘act’ or ‘decision’. She said as a matter of ordinary language, it was difficult to see what the word ‘practice’ added if all one-off decisions and acts necessarily qualified as PCPs. She stated: “the function of the PCP in a reasonable adjustment context is to identify what it is about the employer’s management of the employee or its operation that causes substantial disadvantage to the disabled employee.” The act of discrimination that must be justified is not the disadvantage, but the PCP. She stated :“However widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee.”

[115]In this case I have found that the respondent, through Ms Lenham made every effort to offer proportionate solutions to the problem caused by the inaccurate original HBD.I therefore find there was no provision criteria or practice on the part of the respondent, via Ms Lenham to fail to correct the information held on the claimant’s record, specifically the HBD. The opposite occurred. Ms Lenham tried very hard to reach a solution to the problem through five meetings and extensive correspondence. She offered practical reasonable solutions which the claimant did not accept.

[116]Accordingly having found there was no PCP 1, the claim for reasonable adjustments in relation to that PCP fails at that stage.

[117]I turn to the second PCP which was recorded at issue paragraph 3.1.2: “the Respondent’s manner in which it deals with the Tribunal judgments against it, specifically, the Respondent’s failure to correct (on the Claimant’s view) the historical background document notwithstanding the findings of the Tribunal about that document.”

[118]Once again, I find this is not capable of amounting to a provision criteria or practice. The Slater judgement did not say what the claimant perceived it to say. As I have already stated the Slater tribunal did not require the respondent to correct the historical background document.

[119]The claimant’s perception was mistaken. The claimant repeated her misunderstanding in cross examination stating “The Tribunal made a finding my employer was to look at the HBD with the chronological summary and make them correct”. Her incorrect perception is found in the bundle in various places including p 612.

[120]The claimant confirmed in cross examination that she considered HR had deliberately given false outcomes in the early 2000’s. She said Ms Lenham “needed to take action as she saw fit about those deliberately false outcomes at the end of the process.”

[121]Later in cross examination the claimant appeared to say that it was up to Ms Lenham to suggest the claimant should remove parts of the historical background document which I find was disingenuous. The claimant did not suggest that at the time.

[122]Furthermore there was evidence in the case which suggests the claimant’s perception is not always reliable. The claimant asserted in her witness statement that “ a disability discrimination grievance against Janet Glazebrook was upheld by the decision received on 2.8.24 for harassment and disability discrimination in not correcting records and not dealing with the occupational health consultation reports”. See paragraph 43 of her statement.

[123]I find this is factually incorrect. The claimant agreed the relevant grievance outcome letter expressly states “ although I accept that some actions that could have been taken sooner were not, I do not believe this was due to any bias or discrimination and the decision to partially uphold this grievance has been reached on the consideration of certain tasks not been actioned where they should have been in a timely manner”.p22 Supplementary Bundle ( Claimant’s Bundle). The grievance outcome letter expressly says although the grievance is partly upheld, it is not due to bias or discrimination.

[124]The claimant’s evidence in this case was also contradictory on occasion. In cross examination the claimant said Ms Lenham acted in good faith. Yet in correspondence in an email dated 4 May 2021 she made a very serious allegation that: “The DWP HR Team are not taking the Employment Tribunal remedy judgement seriously and are treating it with contempt.”p612-3. There is no dispute that the person from HR dealing with the matter at the time was Ms Lenham.

[125]I am not satisfied that “the Respondent’s manner in which it deals with the Tribunal judgments against it, specifically, the Respondent’s failure to correct (on the Claimant’s view) the historical background document notwithstanding the findings of the Tribunal about that document.” is capable of amounting to a PCP. I find the second PCP is fundamentally flawed and also fails at this stage.

[126]However in case I am wrong in my findings about the PCPs I have gone on to consider the other issues.

[127]The next issue is 3.2 Did the Respondent apply the above PCPs to the Claimant?

[128]If the PCPs did apply, they were applied to C.

[129]I turn to the next issue 3.3 Was the Claimant substantially disadvantaged by reference to those because of her disability in comparison to a person without her impairment(s)? The claimant did not adduce any evidence to suggest that disabled people were more disadvantaged compared to nondisabled people either in her statement or anywhere else by the PCPs.

[130]I turn to the next issue 3.4 Was the claimant placed at the following substantial disadvantages(s):3.4.1 The Claimant being unable to get past the fact she has suffered reputational damage.

3.4.2 The Claimant feeling unsafe because the Respondent has not applied its policies to the Claimant

3.4.3 a loss of impartiality in terms of how the Respondent dealt with communication from the Claimant by reference to having a single HR point of contact rather than a changing point of contact;

3.4.4 loss of confidence in the Respondent

[131]Once again, the claim becomes confusing here. The claimant relies on four separate substantial disadvantages. The third one appears to have no causal connection whatsoever to the PCP and in fact appears to have been left in, possibly by mistake after Judge Humble issued a deposit order in relation to part of the reasonable adjustments claim. The claimant did not pay the deposit and so that part of the reasonable adjustments claim was struck out. The substantial disadvantage listed at issue 3.4.3 appears to relate the struck out claim.p157,p168-70. Even if I am wrong about that, and the claimant was unable to clarify the matter for the Tribunal when asked by counsel during cross examination, there is no evidence to connect the PCPs to the alleged substantial disadvantage recorded at 3.4.3. Also, it was clear that Ms Lenham was the point of contact for the claimant in relation to the HBD. Ms Lenham explained that at the outset and met with her 5 times.

[132]I now consider whether the PCPs placed the claimant at the substantial disadvantage of “being unable to get past the fact she has suffered reputational damage”. As Lady Justice Simler indicated in the Ishola case the PCP must have a disadvantageous effect on the claimant. There must be a connection between the PCPs and the substantial disadvantage but once again the claimant did not adduce any evidence about the connection.

[133]Likewise in relation to the allegation of substantial disadvantage that the claimant was “feeling unsafe because the respondent had not applied its policies to the claimant.” The claimant when asked in cross examination was unable to articulate which policies she was referring to or why she was feeling unsafe in relation to the PCPs.

[134]Lastly the claimant said she suffered a substantial disadvantage by having lost confidence in the respondent . Although she stated cross examination she did suffer a loss of confidence in the respondent and became distressed at this point she did not explain clearly how the loss of confidence was connected to either of the PCPs.

[135]The minutes of the meetings between the claimant and Ms Lenham and the contemporaneous emails show Ms Lenham and Mrs Saunders engaging politely and conscientiously with the claimant.

[136]Given that the claimant has not shown how the PCPs have caused her substantial disadvantage as described in the list of issues, at this stage the claim also fails.

[137]However for completeness I turn to the next issue which is 3.5 At the relevant times, did the Respondent have actual or constructive knowledge of:3.5.1 the Claimants disability; and 3.5.2 of the substantial disadvantage?

[138]It is agreed the respondent knew the claimant was disabled in answer to 3.5.1.

[139]However the claimant did not adduce any evidence to suggest that Ms Lenham or anybody else knew that the claimant was being placed at the disadvantage she relies upon at issues 3.4.1- 3.4.4 of being unable to get past the fact she has suffered reputational damage, feeling unsafe because the Respondent has not applied its policies to the claimant, a loss of impartiality in terms of how the Respondent dealt with communication from the Claimant by reference to having a single HR point of contact rather than a changing point of contact and a loss of confidence in the Respondent. I am not satisfied the respondent had actual or constructive knowledge of substantial disadvantage and so the claim fails at this point too.

[140]Once again for completeness I turn to the very last issue which was: 3.6 Was it reasonable for the Respondent to take one or more of the following steps to assist C to overcome the disadvantage(s)? The claimant relied on these steps:3.6.1 To investigate and correct the draft briefing historical background document. The Claimant says the latest this should have been resolved was between one and six months of the Respondent receiving the Tribunal’s remedy decision.

3.6.2 To resolve any issues which flow from the correction of the historical

[141]I reminded myself of the guidance in EHRC Code of Practice which says I should consider the extent to which taking the step would prevent the effect in relation to which the duty was imposed (i.e. the effectiveness of the step), the extent to which it was practicable for the employer to take the step, the financial and other costs that would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of its activities, the extent of the employer’s financial and other resources, the availability to the employer of financial or other assistance in respect of taking the step,the nature of the employer’s activities and the size of its undertaking.

[142]I turn to the first adjustment which the claimant suggested which was to investigate and correct the draft briefing historical background document. The claimant says the latest this should have been resolved was between one and six months of the respondent receiving the remedy decision.

[143]The respondent attempted to do this through the sterling efforts of Ms Lenham but it became clear because of the way the claimant approached the matter that it was not possible. When asked for a version of the document she considered to be correct the claimant produced a document twice the length of the original which contained a significant number of new comments and asserted facts and new information. The claimant agreed Ms Lanham was entirely independent and had no knowledge of the matters the claimant referred to, many of which dated back to the early 2000s. The only way that Ms Lenham could check the matters were correct, which was an entirely reasonable thing to do, was to investigate.

[144]For example on p873 in comparison with the original at page 1170 the claimant agreed in cross examination she had inserted new facts in the paragraph on page 873 starting “ The events leading up to this claim.” . The new facts stated were “The reason for the performance marking dispute was that two performance reports were conducted for the same period because JM was on secondment to the Salford Partnership. The new section concludes “DL had given her a B performance marking and the Salford Partnership Manager had given her an A. It was agreed that the A marking would be allowed to go forward on her personnel record.”

[145]The claimant agreed the original HBD at paragraph 2 on p1170 stated “the events leading up to this claim stem from grievances that were raised in 2002 regarding a promotion report and performance marking and a referral to OHS, the subsequent outcome report and the conduct of her then line manager.”

[146]At page 874 in comparison with paragraph 6 on 1170 the claimant has inserted new assertions that an equal opportunities complaint had not been upheld was difficult to progress not least because of the length of time the DWP allowed the investigation to continue.

[147]Clearly as Ms Lenham had no knowledge of these matters as they related to what had happened in 2002 and 20024 so she would have to try to investigate by finding documents and the personnel involved in relation to matters that happened almost 20 years previously. I find that was not reasonable or proportionate.

[148]It is clear although she sometimes denied it in cross examination that at the time the claimant wanted Ms Lenham to investigate. For example, on 10 March 2021 p 562-3 she asked Ms Lenham to find and consider a digital record relating to matters from the early 2000s.

[149]In addition, it has become clear during the course of this Tribunal hearing that what the claimant’s perception is, is not necessarily the objective truth. I have set out above the claimant’s perception in her statement that there was a finding of disability discrimination against Ms Glazebrook which is factually incorrect.

[150]As the meetings to discuss the claimant’s version of the HBD dated Feb 2021 progressed, it became clear that it was going to be extremely difficult to cover all the matters that the claimant wanted considered, because of the length of time that had elapsed, because of the vague , serious generalised opinions stated in the document by the claimant and the fact that some documents from so long ago were no longer available.

[151]It was not possible to resolve the issue for these reasons and having regard to the EHRC Code of Practice I find it became clear it was not was not practicable or proportionate for the respondent to take the step to investigate and correct the HBD in the way the claimant suggested.

[152]I turn to the second reasonable adjustment suggested by the claimant which was: to resolve any issues which flow from the correction of the historical background

[153]Although the claimant was vague in cross examination on this issue, at the time she was clear. In her email of 16 April 2021 at page 1179 she expressly stated the issues arising from the correction (of the HBD) include “the breaches of the GDPR, and the breaches of the Civil Service Code and the correction of the reputational damage and the correction of my digital personal records and any hard copies of my personal records.” In cross examination she said the breaches of the Civil Service Code were breaches of integrity and honesty. She also stated in cross examination that Ms Lenham should take action in relation to any “deliberate false outcomes given by the HR “in the early 2000s. Although in cross examination she did not accept that was disciplinary action it is difficult to know what else she meant.

[154]It was not reasonable or proportionate for the respondent to make this adjustment because firstly it is vague and unclear. Even the claimant could not state clearly what she meant by it. Secondly it was dependent on the first adjustment and the first adjustment was not reasonable for the reasons given above.

[155]Once again in case I am wrong, I turn to the last issue which is 3.7 Did the Respondent fail in its duty to make reasonable adjustments? The respondent did not fail in its duty to make reasonable adjustments.

[156]Ms Lenham tried very hard to reach a satisfactory conclusion in this matter. At one point it looked like the matter might be resolved with the practical solution which was to destroy previous copies of the historical briefing document, keep only one historic version in the tribunal bundle with the judgement and keep a version prepared by the claimant (if the claimant wanted) on the file, which stated it was her document.

[157]The claimant was asked in cross examination if she agreed she removed this simple solution from the discussion in her email 10 September 2021 and she agreed that she did so.

[158]That was unfortunate. I find that the solution suggested above by the respondent was reasonable .

[159]I now consider issue 3.8 Would the adjustments suggested by the Claimant have been reasonable in the circumstances and/or would they have alleviated the substantial disadvantage alleged by the Claimant? The answer is no to both questions for the reasons stated previously.

[160]The remaining issue is at 3.9: The Respondent contends that it met with the Claimant on the dates referred to at paragraph 26 of the Grounds of Resistance, which it considers to have been reasonable in all the circumstances. If the Respondent did make such adjustments, were they sufficient to discharge the Respondents obligations under section 20 Equality Act 2010? I find the answer is yes for the reasons stated.

[161]Finally, the issue of Time Limits. This was the first issue recorded in the List of Issues. However there is no need for me to deal with it as all the claims have failed so it is not relevant.

[162]For all the reasons above all claims failed. Approved by